This Master Subscription Agreement (“Agreement”) with Cubeless, a division of ModSquad, Inc. (“Cubeless”), is a binding contract and governs your subscription, access, and use of our Services by you, your agents, and any users whether in connection with a paid subscription or free trial for the services.
By clicking on the box “I Agree” or similar or by purchasing a subscription for the Services, you indicate your acceptance of the terms and conditions contained in this agreement, in your capacity as a legally authorized signatory of your organization (“you”, “your”, “customer” or “your organization”). This Agreement is entered into between you and Cubeless, Inc., a company registered under the laws of Nevada, USA (hereinafter referred to as “Cubeless”, “we”, “us” or “our” which expressions shall include its affiliates, successor in interest, assigns, and its subsidiaries).
You may not access the services if you are our competitor, except with our prior written consent. In addition, you may not access the services for purposes of monitoring the availability, performance, or functionality of the services or for any other benchmarking or competitive purposes.
We may update this Agreement from time to time and will post each time on our website and/or otherwise notify you.
In this Agreement:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. ‘Control' for the purposes of this definition, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that company, through the ownership or control of securities representing a majority of the voting interests of the subject entity.
“Agreement” means this Agreement including all attachments, annexes, schedules, and other ancillary documents that relate to it, as well as any other attachments, annexes, schedules, and other ancillary documents referred to in this Agreement.
“Software” means the Cubeless software, along with various tools and services.
“Subscription” means the limited license to use and access the Software and Services in line with the Subscription Plan purchased by the Customer.
“Subscription Plan” a plan selected by the Customer out of the varied types of plans that may be offered by us and enabling Customer to enjoy different parameters in relation to the Services.
“Services” means services provided by us to you as a result of your access and use of the Software. Particulars of the Services offered shall depend on the Subscription Plan opted for by you.
“User” means an individual who is authorized by you to use the Services, for whom you have purchased a Subscription, and to whom you (or, when applicable, us at your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.
“Your Data” means any data which you may provide (which may also include User's data) and shall also include data collected by us in course of your use of the Services.
3. FREE TRIAL
If you register with us for a free trial, we will make one or more of the Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) termination by us in our sole discretion.
Additional trial terms and conditions may appear on the trial registration website. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
4. GRANT OF LICENSE
Upon purchasing the Subscription, we hereby grant you for the term of Subscription (subject to early termination), a non-exclusive, non-transferable, revocable, non-sub licensable, limited, subscription-based license to use the Software and Services for your internal business use, subject to the terms of this Agreement and the limitations of the relevant Subscription Plan opted for by you. We will use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, except during (a) planned downtime (of which we will give advance notice); and (b) Force Majeure Events.
Support: We will, at no additional charge, provide you standard customer support for the Services. We will provide you upgraded support if purchased.
Modifications. You acknowledge that we may modify the features and functionality of the Services during the term of your Subscription Plan. We shall provide you with thirty (30) days' advance written notice of any deprecation of any material feature or functionality. We will not materially decrease the overall functionality of the Services purchased by you during the term of your Subscription Plan.
Restrictions: You shall not, directly or indirectly, i) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce, or otherwise make any changes to the Software, or the Services, or ii) use the Software or Services in any manner to provide time-sharing, benchmarking, or other computer services to third parties, except as expressly provided herein, or allow any third party to access or benefit from the functionality of the Software or the Services, or iii) use the Software or the Services for any purpose other than the purpose specified under this Agreement, or iv) allow use of the Software or the Services by anyone other than the permitted Users, or v) use the Software or Services in excess of the limitations of the Subscription Plan purchased by you. You shall have no rights to the Software other than as specifically granted herein. All rights not specifically and unequivocally granted to you are reserved by us. To the extent you are subject to the US Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (HIPAA), use must not use the Services to store or transmit any “protected health information” as defined by HIPAA, unless expressly agreed to otherwise in writing by Cubeless.
5. USE OF SERVICES
Usage Limits. Services are subject to usage limits, including, for example, the quantities and limitations specified in the Subscription Plan opted by you under the Subscription. Unless otherwise specified, (a) a User's password may not be shared with any other individual, and (b), a User identification may only be reassigned to a new individual replacing one who will no longer use the Service. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you will subscribe to a separate subscription plan for additional quantities of the applicable Services promptly upon our request, and/or pay any invoice for excess usage in accordance with this Agreement.
Your Responsibilities. You will (a) be responsible for a Users' compliance with this Agreement and Services, (b) be responsible for the accuracy, quality, and legality of Your Data or information provided by you, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify us promptly of any such unauthorized access or use, and (d) use Services only in accordance with this Agreement, Subscription Plan, and applicable laws and government regulations.
Compliance. As between you and Cubeless, you are responsible for compliance with the provisions of this Agreement by agents and Users and for any and all activities that occur under your account, which Cubeless may verify from time to time. Without limiting the foregoing, you will ensure that your use of the Services is compliant with all applicable laws and regulations as well as any and all privacy notices, agreements, or other obligations you may maintain or enter into with agents or Users.
System Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect your network to the Services including, but not limited to, browser software that supports protocols used by Cubeless, including the Transport Layer Security (TLS) protocol or other protocols accepted by Cubeless, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying you, agents, or Users of any upgrades, fixes, or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the internet) which are not owned, operated, or controlled by Cubeless. We assume no responsibility for the reliability or performance of any connections as described in this paragraph.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
Fees. You will pay all fees in advance as specified in the Subscription Plan opted by you. Except as otherwise specified herein or in the Subscription Plan, (i) fees are based on the Subscription Plan purchased and not actual usage if such usage does not exceed the contractual usage limit, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. The invoiced charges are due immediately from the invoice date. You may be provided with a grace period of seven (7) days from the invoice date at our sole discretion.
Overdue Charges. If any invoiced amount is not received by us by the due date and the grace period as mentioned hereinabove, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future Subscription renewals on different payment terms than those specified in this Agreement.
Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for our Services is seven (7) days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our Services to you until such amounts are paid in full.
Taxes. Unless otherwise designated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Subscriptions hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property, and employees.
Future Functionality. You agree that your Subscriptions are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. Subject to the limited rights expressly granted hereunder, we, our Affiliates and our licensors own all rights, titles, and interests in and to all copyright, trademark rights, patent rights, design rights, and other IP rights to the Software and Services, as well as to any work output and all further developments, updates, upgrades, enhancements, modifications, or derivative works which are developed on or out of the Services by any party. No rights are granted to you hereunder other than as expressly set forth herein.
License to Host Your Data and Applications. You grant us, our Affiliates and applicable contractors a worldwide license to host, copy, transmit, and display Your Data, and program code created by or for you, as reasonably necessary for us to provide the Services in accordance with this Agreement.
License to Use Feedback. You grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our and/or our Affiliates' services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or Users relating to the operation of our or our Affiliates' services.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel, and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate's, legal counsel's, or accountant's compliance with this “Confidentiality” section. Notwithstanding the foregoing, we may disclose the terms of this Agreement to a subcontractor or non-Cubeless application provider to the extent necessary to perform our obligations to you under this Agreement, under terms of confidentiality materially as protective as set forth herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Representations. The parties each separately represent and warrant the execution, delivery, and performance of this Agreement and have been duly authorized by all necessary corporate actions on its behalf to enter into this Agreement. This Agreement has been duly executed and delivered and is a legal, valid, and binding Agreement. You hereby warrant that no data or material you provide for use with or in connection with the Services shall infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights, or right of publicity or privacy, or violate any applicable law, statute, or regulation for its subscription term.
DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
We do not provide legal or compliance advice. Customer is solely responsible for determining and complying with its obligations under all appliable laws, rules, and regulations, including all privacy laws. Customer should consult with qualified legal counsel or consultants, as needed, to ensure that their use of Software complies with the law. The information report generated by use of the Software is not exhaustive, and must be reviewed, evaluated, assessed, and approved by the Customer in connection with the Customer's particular security features, tools, and configurations.
Indemnification by Us. We will indemnify and defend you from and against any claim brought by a third party against you alleging that your use of a Service as permitted hereunder, infringes or misappropriates a third party's valid patent, copyright, trademark, or trade secret (an “IP Claim”). We shall, at our expense, defend such IP Claim and pay damages finally awarded against you in connection therewith, including reasonable fees and expenses of attorneys engaged by Cubeless for such defense, provided that (a) you promptly notify Cubeless of the threat or notice of such IP Claim; (b) we will have sole, exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim (however, we shall not settle or compromise any claim that results in liability or admission of any liability by you without your prior written consent); and (c) you fully cooperate with Cubeless in connection therewith. If use of a Service by you, agents, or Users has become, or, in our opinion, is likely to become, the subject of any such IP Claim, We may, at our option and expense (i) procure for you the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Cubeless, terminate your subscription to the Service(s) and repay you, on a pro-rata basis, any subscription charges paid to Cubeless for the unused portion of your subscription term for such Service(s). We will have no liability or obligation under this section with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by you; (y) modification of the Service(s) by anyone other than Cubeless or Cubeless personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this section state the sole, exclusive and entire liability of Cubeless to you and your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by you, agents, or Users.
Indemnification by You. You will indemnify, defend, and hold Cubeless harmless against any claim brought by a third party against Cubeless (a) arising from or related to use of a Service (and not arising solely from the Service itself) by you, agents, or Users in breach of this Agreement; or (b) alleging that your use of the Service or your service data infringes or misappropriates a third party's valid patent, copyright, trademark, or trade secret; provided that (i) we promptly notify you of the threat or notice of such claim; (ii) you will have the sole and exclusive control and authority to select defense attorneys, and to defend and/or settle any such claim (however, you shall not settle or compromise any claim that results in liability or admission of any liability by us without our prior written consent); and (iii) we fully cooperate with you in connection therewith.
11. LIMITATION OF LIABILITY
Exclusion of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF CUBELESS), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT AND THE SERVICES SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
LIMITATION OF LIABILITY IN THE AGGREGATE. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY YOU AND SHALL NOT BE CUMULATIVE.
We shall have the right to audit the Customer during business hours and upon reasonable prior notice in order to verify that the Software is being used in compliance with this Agreement. Notwithstanding anything to the contrary contained herein, we shall be entitled to such programs to monitor your usage of the Software, in order to ensure that the Customer usage of the Software is in accordance with the terms of this Agreement.
13. TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date you first accept it and continues until all Subscriptions hereunder have expired or have been terminated pursuant to the applicable Subscription Plan.
Termination. Either party may suspend or terminate this Agreement: (i) upon thirty (30) days' written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such period (or only ten (10) days' written notice in the event of your non-payment), or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
We may also terminate this Agreement for convenience by giving you at least sixty (60) days' notice in writing.
Refund or Payment upon Termination. In no event will termination relieve you of your obligation to pay any fees and/or outstanding payable to us for the period prior to the effective date of termination.
Your Data Portability and Deletion. Upon request by you, upon termination or expiry of this Agreement, we will make Your Data, in our possession and not legally prohibited, available to you for export or download. After termination or expiry of this Agreement, we will have no obligation to maintain or provide any of Your Data in excess of the days that your Subscription Plan requires us to, and we may thereafter delete or destroy all copies of Your Data in our systems.
14. NOTICES, GOVERNING LAW, AND JURISDICTION
Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective:
- if given by personal delivery, upon such personal delivery;
- if given by internationally recognized courier or mail service, at the time that the notice is delivered to the receiver's premises according to the tracking records of the courier or mail service; or
- upon delivery by facsimile or electronic transmission by verified electronic transmission receipt, in each case with a courtesy copy sent by email.
Addresses. The addresses for notice for each party are the respective addresses of the parties set forth in the billing details of the purchased Subscription. Either party may change its address for notice by written notification to the other party.
Governing Law. This Agreement shall be governed by the laws of the State of Texas, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Austin, Texas. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement, or relating to access to or use of the Services by you, agents, or Users.
15. NON-CUBELESS SERVICES
If You decide to enable, access, or use non-Cubeless services in connection with your use of Cubeless, Your access and use of such non-Cubeless services shall be governed solely by the terms and conditions of such non-Cubeless services. Cubeless does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such non-Cubeless services, including, without limitation, their content or the manner in which they handle, protect, manage, or process data, or any interaction between you and the provider of such non-Cubeless services. We cannot guarantee the continued availability of such non-Cubeless service features, and may cease enabling access to them without entitling you to any refund, credit, or other compensation, if, for example and without limitation, the provider of a non-Cubeless service ceases to make the non-Cubeless service available for interoperation with the corresponding Service in a manner acceptable to us. You irrevocably waive any claim against Cubeless with respect to such non-Cubeless services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access, or use of any such non-Cubeless services, or your reliance on the privacy practices, data security processes, or other policies of such non-Cubeless services. You may be required to register for or log into such non-Cubeless services on their respective websites. By enabling any non-Cubeless services in connection with your use of Cubeless, You are expressly permitting Cubeless to disclose your login and service data to the provider of the non-Cubeless services as necessary to facilitate the use or enablement of such non-Cubeless services.
16. GENERAL PROVISIONS
Entire Agreement. This Agreement (together with the documents referred to herein) constitutes the entire agreement between you and us in relation to the transactions referred to herein and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.
Assignment. You shall not assign any your rights or obligations hereunder, whether by operation of law or otherwise, without our prior written consent. We may assign this Agreement in its entirety, without your consent to our Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Force Majeure. In any event or combination of events or circumstances beyond the control of a party which cannot (a) by the exercise of reasonable diligence, or (b) despite the adoption of reasonable precaution and/or alternative measures be prevented, or caused to be prevented, and which materially and adversely affects a party's ability to perform obligations under this Agreement including but not limited to:
- acts of god i.e. fire, drought, flood, earthquake, pandemics, epidemics, and other natural disasters.
- explosions or accidents, air crashes, and shipwrecks;
- demonetization and other government policy changes;
- strikes or lockouts;
- any change in law; or
- any event or circumstances analogous to the foregoing.
The parties will not hold each other liable for their non-performance as set out in this Agreement. Nothing in this Section shall apply to your payment obligations or relieve you of any responsibility to pay for the Subscription or Services.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force.
Ethical Conduct and Compliance. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of its employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.