GENERAL. The following terms and conditions (“Terms and Conditions”) provide for terms that are common to this Agreement, including all Ordering Documents and Schedules. Each Statement of Work shall be in substantially the same form as Schedule 2. In the event of a conflict between these Terms and Conditions and any Ordering Document or Schedule, these Terms and Conditions will control, unless expressly stated to the contrary in the Ordering Document or Schedule. Order Forms, Statements of Work, and any other ordering document incorporating these Terms and Conditions by reference are individually and collectively referred to as “Ordering Document(s).”
2.1 General. All services provided by Administrate under this Agreement (“Services”), including the Software Services, will be provided to Customer according to these Terms and Conditions, the Ordering Documents, and all schedules, exhibits, or other attachments made a part of this Agreement.
2.2 Services Delivery. Except as otherwise set forth on an applicable Ordering Document, Administrate may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.
2.3 Third Party Providers. Customer acknowledges that the Services may enable or assist Customer and End Users in accessing the website content of, corresponding with, and purchasing products and services from, third parties via third-party websites and that Customer and its End Users do so solely at their own risk. Administrate shall have no liability in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Customer or End Users, with any such third party.
3.1 Software Services. Administrate will provide Customer, and its authorized employees, contractors and other designated end users (“End Users”), including Customer’s users given access as end trainee/learners (“Learners”), up to the number of End Users and Learners, identified on the applicable Ordering Document, with access to the software products and related services provided by Administrate via a web browser (or mobile application) and identified on the applicable Ordering Document (“Software Services”).
3.2 Support Services. Administrate shall provide support services in accordance with Schedule 3. In all instances where service credits are available, such service credits shall be the sole remedy for a breach of this Agreement relating to the subject matter covered by such service credit. Any applicable service credits will be credited against amounts subsequently owed by Customer under this Agreement.
3.3 Service Levels. Administrate shall provide the Software Services in accordance with the service level agreement set forth in Schedule 4. In all instances where service credits are available, such service credits shall be the sole remedy for a breach of this Agreement relating to the subject matter covered by such service credit. Any applicable service credits will be credited against amounts subsequently owed by Customer under this Agreement.
3.4 Restrictions. Customer shall not share, lease, license, sell, sublicense or otherwise transfer its access to or use of the Software Services. The Software Services may only be used by Customer and End Users (and only the number of End Users authorized on the applicable Ordering Document). In addition, Customer shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Software Services. Nothing in this Agreement confers upon either party any right to use the other party’s Marks, except in Administrate’s performance of the Services. All use of such Marks by either party will inure to the benefit of the owner of such Marks, use of which will be subject to specifications controlled by the owner.
Professional Services. Administrate may provide integration, implementation, or other professional services (each to the extent identified as professional services on a Statement of Work, “Professional Services”) and Deliverables to Customer as set forth in a Statement of Work. “Deliverables” means all materials that are identified as such in a Statement of Work. A Statement of Work will be provided for each of the Professional Services referenced on the Ordering Document following the execution of the Agreement.
Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the “Customer Materials” (as defined in an applicable Statement of Work, if applicable), including all intellectual property rights therein. Administrate shall have no right or license to use any Customer Materials except during the Term to the extent necessary to provide the Professional Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer. All right, title and interest, including all intellectual and proprietary rights, in and to the Software Services. Deliverables, and all Administrate service marks, trademarks, trade names, logos, and any modifications to the foregoing (“Marks”) (and all suggestions, feedback, contributions, enhancements, improvements, additions, modifications, or derivative works thereto and copies thereof) will remain in possession of Administrate. Customer acknowledges that the Software Services in source code form is the Confidential Information of Administrate and that the source code is not licensed to Customer by this Agreement or any Schedule and will not be provided by Administrate. No right or implied license or right of any kind is granted to Customer regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the Software Services or the documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the Software Services.
6.1 Services Fees. For the Services provided under this Agreement, Customer will pay Administrate the fees in the amounts set forth on the applicable Ordering Document. Unless otherwise set forth on the applicable Ordering Document, applicable fees will be invoiced to Customer annually in advance and payable within sixty (60) days of invoice. Fees are noncancelable and non-refundable. After the Initial Term, and at the beginning of each Renewal Term thereafter, Administrate may adjust the fees applicable during the upcoming Renewal Term by ten (10) percent upon written notice provided at least sixty (60) days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. All fees paid and expenses reimbursed under this Agreement will be in United States currency.
6.2 Late Fees. Customer will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. Administrate, at its option, may suspend the Services, in whole or in part, if Administrate does not receive all undisputed amounts due and owing under this Agreement within thirty (30) days after delivery of notice to Customer of the failure to pay such overdue balances.
6.3 Taxes. The fees and expenses due to Administrate as set forth in this Agreement are net amounts to be received by Administrate, exclusive of all sales, use, withholding, excise, value-added, ad valorem taxes or duties incurred by Customer or imposed on Administrate in the performance of this Agreement or otherwise due as a result of this Agreement. This section will not apply to taxes based solely on Administrate’s income.
6.4 Offset. Fees and expenses due from Customer under this Agreement may not be withheld or offset by Customer against other amounts for any reason.
7.1 Initial Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the initial term set forth on the applicable Ordering Document (“Initial Term”), unless earlier terminated as provided for below. Thereafter, except with respect to any Statements of Work (which shall expire in accordance with their terms), the Initial Term shall automatically renew for successive periods as set forth on the applicable Ordering Document, or if no such period is set forth on the Ordering Document, for successive periods equal to the length of the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party at least 60 days prior to the end of the then-current Initial Term or Renewal Term of its intent to not renew the Agreement.
7.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below:
a. By either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party including the failure to pay any fees due to Administrate; or
b. By either party if the other party makes an assignment for the benefit of creditors, or commences, or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
7.3 Termination of Statement of Work. Either party may terminate any outstanding Statement of Work without terminating the entire Agreement if the other party commits a material breach of such Statement of Work and such breach remains uncured 30 days after written notice thereof is delivered to the other party.
7.4 Effect. Upon termination of this Agreement for any reason, all rights and licenses granted by Administrate hereunder to Customer will immediately cease. Within thirty (30) days after termination or expiration of this Agreement, each party shall return or destroy the Confidential Information of the other party.
7.5 Survival. Termination of this Agreement or any Schedule will not affect the provisions regarding Administrate’s or Customer’s treatment of Confidential Information, provisions relating to the payments of amounts due, indemnification provisions, provisions limiting or disclaiming Administrate’s liability, or any other terms which by their nature should survive, which provisions will survive such termination.
8.1 Technical Requirements. Customer must have required equipment, software, and Internet access to be able to use the Software Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Customer’s responsibility. Administrate neither represents nor warrants that the Software Services will be accessible through all web browser releases.
8.2 Use of Software Services. Customer shall not and shall not permit others in using the Software Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Administrate; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, infringing, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (iv) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Administrate; (v) misrepresent or in any other way falsely identify Customer’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Services; (vi) transmit or upload any material through the Software Services contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Administrate’s, or any other person’s or entity’s, network, computer system, or other equipment; (vii) interfere with or disrupt the Software Services, networks or servers connected to the Administrate systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Software Services; (viii) attempt to gain unauthorized access to the Software Services, other Administrate customers’ computer systems or networks using the Software Services through any means; or (ix) interfere with another party’s use of the Software Services, including any parties Customer has done business with or choose not to do business with through the Software Services. Administrate has no obligation to monitor Customer’s use of the Software Services. However, Administrate may at any time monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. Customer shall use commercially reasonable efforts, including reasonable security measures relating to administrator account access details, to ensure that no unauthorized person may gain access to the Services.
8.3 Compliance with Law. Customer agrees not to use (and will use its best efforts not to allow its End Users to use) the Software Services for illegal purposes or for the transmission of material that is unlawful, harassing, libelous (untrue and damaging to others), invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the rights of others. Customer is solely responsible for any and all improper use of the Software Services that occurs as a direct or indirect result of any act or omission of Customer. Customer will notify Administrate immediately of any unauthorized use of the Software Services or any other breach of security that is known or suspected by Customer.
9.1 Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
9.2 Requirement of Confidentiality. The Recipient agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates, officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. Customer acknowledges that the Software Services and documentation are the Confidential Information of Administrate. The obligations in this Section 9 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
9.3 Compelled Disclosure. If the Recipient becomes legally compelled to disclose any Confidential Information, the Recipient shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Recipient remains required by law to disclose any Confidential Information, the Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, the Recipient is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
9.4 Customer Data; Data Use. “Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an End User by or through the Services, but does not include any data collected, downloaded or otherwise received, directly or indirectly from any other user of the Services. Customer hereby grants to Administrate a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Customer Data to the extent reasonably required for the performance of Administrate’s obligations and the exercise of Administrate’s rights under this Agreement. Customer warrants to Administrate that Customer has the right to provide such Customer Data to Administrate in accordance with this Agreement. Additionally, Customer agrees that data derived by Administrate from Administrate’s performance of the Services or input by or feedback from Customer may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis (“De-identified Data”) may be used by Administrate for any lawful purpose both during and following the Term. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain any information that identifies or can be reasonably used to identify an individual person.
10.1 Data Security. Where Administrate processes any “personal data” on Customer’s behalf, Customer agrees that it is the “data controller” and Administrate shall be a “data processor” as defined by current GDPR data protection regulations.
10.2 Data Backup. Customer accepts that backup copies of the Data will be made. Administrate makes a backup copy of Customer’s Data during the night on a daily basis. Administrate keeps all backup copies for at least 5 business days. Customer can request Administrate within 2 business days to replace (place back) a backup copy in whole or in part. Every replacement in whole or in part of a backup copy as a result of a Service Error (as defined in Schedule 4) will be carried out by Administrate free of charge. Every replacement in whole or in part at the request of Customer without the occurrence of a demonstrable Service Error that can be attributed to Administrate, may involve additional costs for Customer. Administrate will inform Customer in writing about any additional costs, upon which Customer must inform Administrate in writing that it accepts these additional costs before Administrate will commence replacing a backup copy. Administrate shall follow its archiving as set out in its back-up policy available at www.getadministrate.com (the “Website”).
10.3 Loss of Data. Administrate shall ensure that the Recovery Point Objective (RPO) does not exceed 24 hours. The RPO is the age of files that must be recovered from backup storage for normal operations to resume if a computer, system, or network goes down as a result of hardware, program, or communications failure. Administrate is not liable to Customer for loss of data: a) during its RPO, or b) after its RPO if such data can be repaired or recreated by Administrate within a period of 3 business days after the loss of data first occurred and was reported to Administrate by Customer.
Administrate represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software Services will perform substantially in accordance with the documentation under normal use and circumstances. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 11, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY ADMINISTRATE. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS.
12.1 Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ADMINISTRATE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 Exceptions. The exclusions and limitations in Section 12.1 and Section 12.2 shall not apply to: (a) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 9 (Non-Disclosure and Confidentiality); or (b) a party’s obligations under Section 13 (Indemnification).
13.1 Administrate Indemnification. Administrate shall defend Customer and its officers, directors, employees, agents, successors and permitted assigns against any third party claim, suit, action or proceeding (each, an “Action”) based on a claim that Customer’s receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Customer to the extent based on such an Action; provided, however, that Administrate shall have no obligations under this Section 13.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Customer to Administrate; (b) use of the Services in combination with any materials or equipment not supplied to Customer or specified by Administrate in writing; or (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Administrate. If the Services, or any part thereof, become, or in the opinion of Administrate may become, the subject of a claim of infringement or misappropriation, Administrate may, at its option: (i) procure for Customer the right to use such Services free of any liability; (ii) replace or modify the Services to make them non-infringing; or (iii) terminate this Agreement and refund to Customer any portion of the fees prepaid by Customer for the infringing Services.
13.2 Customer Indemnification. Customer shall defend Administrate and its officers, directors, employees, agents, affiliates, successors and permitted assigns against all Actions based on a claim that any information or materials provided by Customer (including Customer Data), or Administrate’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Administrate to the extent based on such an Action.
13.3 Indemnification Procedures. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 13.1 shall not relieve the indemnifying party of its obligations under this Section 13.1 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule.
14.2 Disputes. This Section shall apply to all disputes, controversies and/or claims, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory (other than equitable relied which either party is entitled to seek for breaches of confidentiality or intellectual property rights) arising out of or relating to this Agreement or breach of alleged breach of this Agreement (collectively, “Disputes”). The parties will use all reasonable efforts to settle all Disputes through good faith negotiations. If such dispute is not resolved by the end of the thirty (30) day period, the parties shall refer any outstanding issues to be determined exclusively by arbitration in accordance with the Optional Expedited Arbitration Procedures and rules of Judicial Arbitration and Mediation Services (“JAMS”) before a single arbitrator. Such arbitration shall be conducted in New York, New York. The award of such arbitration shall be confidential, final, binding and non-appealable, except to the extent provided for in the rules of JAMS. The arbitrator will have the discretion to impose the costs of the arbitration upon the losing party or divide it between the parties upon any terms which (s)he deems appropriate; provided, an award rendered by the arbitrator may be entered in any court of competent jurisdiction, or application may be made to such court for confirmation of such award or a judicial acceptance of such award, and for an order of enforcement or other legal remedy. Notwithstanding the foregoing, a party may seek injunctive relief from any court of competent jurisdiction pending the outcome of any dispute resolution procedure set forth in this Section. THE ARBITRATOR SHALL NOT AWARD ANY PARTY DAMAGES THAT ARE INCONSISTENT THIS THE TERMS OF THIS AGREEMENT. THE ARBITRATOR MAY AWARD ATTORNEYS’ FEES AND COSTS OF THE ARBITRATION.
14.3 Conflicting Terms. Notwithstanding the content of any Customer purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
14.4 Notice. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by email to the address set forth on the applicable Ordering Document, as may be amended by the parties by written notice to the other party in accordance with this Section 14.4.
14.5 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign the Agreement to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
14.6 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
14.7 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
14.8 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
14.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
14.10 Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14.11 Force Majeure. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.
14.12 Equitable Relief. Each party acknowledges that a breach by a party of Section 3.4 (Restrictions) or Section 9 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
14.13 Use of Customer Name. Customer grants Administrate a limited license to use Customer’s trade name, trademark, or service mark in public marketing materials, including prospective and existing client meetings and presentations, but only upon prior written consent of the customer.
14.14 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
14.15 Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
14.16 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
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