Higher Digital Software as a Service Terms
These Higher Digital Software as a Service Terms (these “Terms”) together with the Statement of Work incorporating these Terms by reference and the other documents referred to therein, form the entire Agreement (the “Agreement”), by and between Higher Digital Inc. (“Higher Digital”), a Delaware corporation having its principal place of business at 1775 Tysons Boulevard, 5th Floor, Tysons, VA 22102, and the Company (as set forth in the Statement of Work), effective as of the Effective Date set forth in the Statement of Work. Higher Digital and Company may be collectively referred to herein as the “Parties” or the “parties” and each individually as a “Party” or “party”.
Recitals
WHEREAS, Higher Digital has developed and provides to its customers access and use of its proprietary, best-in-class Simple Enterprise Agile digital transformation benchmarking and management platform known as (SEA)results® (the “Product”), which enables customers to benchmark their performance relative to its competitors, identify opportunities to improve performance, provide education to institution staff on best practices, and measure performance over time;
WHEREAS, Higher Digital also provides its customers with its consulting services comprised of an initial assessment of a customer’s data, analytics, organizational processes, prioritization and digital environment, the development of recommendations designed to best fit with a customer’s specific needs and goals, and ongoing evaluation and management of a customer’s deployment of change and improvement opportunities across such customer’s operations, technology, organization, and culture, each as may be more particularly described in a Statement of Work (collectively, the “Services”).
WHEREAS, Company desires to access and use certain of the Product and Services and Higher Digital is willing to provide the Product and those Services as are set forth in the Statement of Work, subject to the terms and conditions set forth herein and therein.
NOW THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:
- DEFINITIONS. In addition to any terms defined throughout these Terms or in a Statement of Work, when used in these Terms, the following capitalized terms shall have the meanings indicated below:
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- “Account” means Company’s account through which the Company can access and use the Product.
- “Affiliate” means an entity controlling, controlled by or under common control with a party. As used in this definition, the terms “control,” “controlling” and “controlled by” shall mean the possession, directly or indirectly, of the power either to (a) vote 50% or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such person or (b) direct or cause the direction of the actions, management or policies of such person, whether through the ownership of voting securities or interests, by contract or otherwise.
- “Company Data” shall mean all data provided by Company to Higher Digital in connection with its use of the Product, as well as all data derived from the use of such provided data in connection with the use of the Product.
- “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of the Agreement, as well as, specifically in the case of Higher Digital, the Product, Technology and any Documentation or other proprietary materials describing the foregoing, and specifically in the case of Company, the Company Data. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of the Agreement or any other agreement by the recipient of the information; (b) is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the receiving party with respect to such information; (d) is independently developed by the recipient of the information without any breach of the Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records; or (e) is approved for release in advance in writing by the disclosing party, as applicable.
- “Designated Users” means the individual Company users designated by Company to access the Account, each of which will be assigned a unique user login and password.
- “Documentation” means all operating manuals, user manuals, training and marketing materials, guides, product descriptions, product specifications, technical manuals, supporting materials, and other information relating to the Product.
- “Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.
- “Statement of Work” means an order form, whether in paper format or online format, that incorporates these Terms by reference from time to time, pursuant to which Company orders Product access for one or more of the Company’s Designated Users.
- “Product” has the meaning specified in Recital A hereof, as more particularly identified in a Statement of Work, including all Technology related thereto.
- “Software” means all software code comprising all or a portion of the Product, made available by Higher Digital for use by Company, including any modified versions, updates or upgrades of the Software that may be provided to Company by Higher Digital, but does not include source code for the Software.
- “Technology” means any Software or technology incorporated in or made available through the Product by Higher Digital to Company.
- PRODUCT ACCESS
2.1 Access to Higher Digital Product.
(a) Subject to the terms and conditions of these Terms and each applicable Statement of Work, Higher Digital hereby grants Company the right, during the term set forth in the Statement of Work, to access and use the Product for the purposes set forth in the Statement of Work through Company’s Account.
(b) Higher Digital will provide Company with user logins and passwords for its Designated Users (as set forth in a Statement of Work) to access the Company’s Account for the Product. Company and its Designated Users shall not share the user logins and passwords with, or otherwise allow access to the Product and Account by, any other than the Designated Users. Company shall provide to Higher Digital all required information, which must be correct, current and complete, in order to create the Account. Company is responsible for maintaining the confidentiality of the user login and password Company is given to access the Account, and Company is fully responsible for all activities that occur under the Account. Company shall notify Higher Digital immediately of any unauthorized use of a Designated User’s login and password.
2.2 Company Obligations. Exclusive of any Technology comprising a part of the Product, Company shall be solely responsible, at its sole cost and expense, for (i) providing and maintaining all hardware, software, electrical and other physical requirements necessary for Company’s use of the Product, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth, or other equipment, software and services required to access and use the Product, (ii) ensuring that all of the foregoing are compatible with the Product, and (iii) complying with all system requirements provided by Higher Digital.
2.3 Permitted Use; Limited License. Subject to Company’s compliance with all the terms and conditions of this Agreement and any additional usage requirements, restrictions, documentation and policies Higher Digital may reasonably provide to Company from time to time upon at least thirty (30) days prior written notice to Company and solely as necessary to comply with later promulgated laws, rules, regulations and/or software licensing terms, Higher Digital hereby grants to Company a limited, revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive license and right to access and use the Product for the purposes set forth in the Statement of Work, including all Software related thereto that Higher Digital makes available to Company along with any subsequent updates and upgrades thereto, during the Term, solely for the purposes of servicing the needs of Company and/or for providing its Client with access to same.
2.4 Restrictions. Company agrees that Company will not, nor will Company allow or facilitate a third party to, directly or indirectly (i) reproduce or modify the Product and/or Technology, (ii) use any device, software or routine to interfere with the proper working of the Product and/or Technology, (iii) use the Product and/or Technology in any manner other than as permitted by the Statement of Work and these Terms. Without limiting the foregoing, Company further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the Product infrastructure, as reasonably determined by Higher Digital. Higher Digital reserves all rights not expressly granted under the Agreement.
2.5 Third Party Integrators. Company shall be solely responsible for all actions of and agreements with third parties engaged by Company to provide any integrations of the Product and/or Technology with Company’s infrastructure.
- FEES AND PAYMENT TERMS.
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- Fees. Company shall pay Higher Digital the fees set forth in the Statement of Work with respect to the Product use provided thereunder. All amounts will be due and payable at the time of execution of a Statement of Work. Higher Digital reserves the right to terminate and/or suspend the provision of the Product upon ten (10) days prior written notice to Company of a failure to timely pay an fees due and owing pursuant to a Statement of Work. Company shall be liable for all costs of collection, including attorneys’ fees and costs. Company shall be responsible for all sales, use and related taxes associated with its payment obligations pursuant to this Agreement.
- INTELLECTUAL PROPERTY
- Proprietary Rights. As between Higher Digital and Company, Higher Digital owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Product and the Technology (collectively, the “Higher Digital Property”). Use of the Higher Digital Property for any purpose not set forth in the Agreement is prohibited. Company acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Higher Digital’s rights with respect to the Higher Digital Property. The Product and Software are protected by copyright and other intellectual property laws and by international treaties. As between Higher Digital and Company, Company owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Company Data (the “Company Property”). Use of the Company Property for any purpose not set forth in the Agreement is prohibited. Higher acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Company’s rights with respect to the Company Property. The Company Property may be protected by copyright and other intellectual property laws and by international treaties. Subject to the foregoing, the Company grants to Higher Digital a perpetual, limited, non-exclusive license and right to access and use Company Data in an aggregated, de-identified and/or anonymous format for purposes of providing benchmarking services and marketing it products and services.
- No Reverse Engineering. Except as provided in Section 2.3 above, Company has no rights or licenses with respect to the Product. Without limiting the generality of the foregoing, except as expressly provided in a Statement of Work and/or these Terms, Company may not (a) sell, resell, copy, distribute, rent, lease, lend, sublicense, transfer, assign or make the Product available to any third party or use the Product on a service bureau basis, (b) modify, decompile, reverse engineer, or disassemble the Product or otherwise attempt to derive any of Higher Digital’s Intellectual Property Rights in the Product, (c) create derivative works based on the Product; (d) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Product during the use and operation thereof; or (e) copy any of the Documentation. As between Company and Higher Digital, any changes to, modifications to, or derivative works of the Software shall become the exclusive property of Higher Digital.
- No License. Nothing in any Statement of Work or these Terms shall be deemed to grant Company any license to use the Product and/or Technology other than as expressly stated therein or herein.
- Product Feedback. Company may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the Product or modifications or enhancements thereto (the “Company Input”). Any Company Input is provided on a non-confidential basis regardless of any suggestion to the contrary in any Company communication, and Company hereby grants Higher Digital a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Company Input (directly or through third parties) in any manner without compensation or liability to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing Higher Digital’s products and services.
- CONFIDENTIALITY
- Restrictions on Use and Disclosure. Each party agrees: (i) to protect and safeguard the other party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and, in any event, not less than reasonable care; (ii) to restrict access to the other party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, and contractors who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by the Agreement; and (iii) not to use, or permit others to use, the other party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under the Agreement. Each party shall return or destroy all Confidential Information of the other party upon the termination or expiration of the Agreement or upon the request of the other party; provided, however, neither party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of the Agreement in order to receive the benefits of the Agreement or properly perform in accordance with the Agreement or in order to remain compliant with a valid law, regulation, or court or administrative order.
- Exceptions. Notwithstanding any other provision of any Statement of Work or these Terms, each party may disclose Confidential Information of the other party if such disclosure is required by an order of a court or other governmental authority, law or regulation, but only to the extent that any such disclosure is necessary and after notice to the other party if practicable. In such case, the party required to make the disclosure shall, at the other party’s expense, assist the other party in obtaining an order protecting the Confidential Information from public disclosure, or in otherwise minimizing and limiting the breadth and scope of such disclosure.
- Confidentiality of Agreement. Each party agrees that the terms and conditions, but not the existence and general nature, of the Agreement shall be treated as Confidential Information, provided, however, that each party may disclose the terms and conditions of the Agreement: (i) as required by any court or other governmental body, subject to the provisions of Section 2; (ii) to legal counsel of the parties; (iii) in confidence, in connection with the enforcement of this Agreement or rights under the Agreement; or (iv) in confidence, in connection with an actual or prospective merger, acquisition or similar transaction, provided that the party seeking to so disclose pursuant to (i) or (iv) above must provide advance written notice to the non-disclosing party of any proposed disclosure and provide the non-disclosing party with an opportunity to request appropriate protections of its Confidential Information (e.g., protective order or confidential treatment) and shall assist in such efforts using its reasonable best efforts.
- Remedies. Each party understands and acknowledges that any disclosure or misappropriation of any of the disclosing party’s Confidential Information in violation of the Agreement may cause the disclosing party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the disclosing party shall deem appropriate. Such right of the disclosing party shall be in addition to the remedies otherwise available to the disclosing party at law or in equity.
- TERM AND TERMINATION
- Unless terminated earlier by either party in accordance with Section 6.2 or the terms of an applicable Statement of Work, the Agreement shall commence on the Effective Date of the applicable Statement of Work and remain in effect for the term of time set forth such Statement of Work (the “Initial Term”). Notwithstanding the foregoing, unless otherwise set forth in the applicable Statement of Work, each Statement of Work shall be automatically renewed for additional, successive terms of twelve (12) months (each, a “Renewal Term”) unless, at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term, either party provides the other party with written notice of its desire not to renew such Statement of Work. Such right of non-renewal may be exercised by either party, with or without cause.
- The Agreement and the provision of the Product may be terminated immediately upon written notice:
- by either party if the other party breaches any material provision of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach; or
- by either party (i) if the other party becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such party shall only be in breach if such petition or proceeding has not been dismissed within sixty (60) days.
- Effect of Termination or Expiration. Upon termination or expiration of the Agreement: (i) Higher Digital shall deauthorize Company’s Designated User logins and passwords and terminate Company’s access to the Account and the Product, and Company shall immediately cease all use of the Product. In the event of termination, except as a result of Higher Digital’s breach, Company shall not be entitled to a refund or credit of any of the undisputed fees set forth in a Statement of Work, and Higher Digital will promptly issue an invoice for any additional fees, if any, payable by Company with respect to the calendar month in which the date that such termination occurs.
- Survival of Provisions. Sections 1, 2.4, 3, 4, 5, 6.3, 6.4, 7.3, 8, 9 and 10, as well as any other terms hereof that by their intent or meaning would reasonably be deemed as intended to so survive, shall survive any termination or expiration of this Agreement. No termination hereunder shall constitute a waiver of any rights or causes of action that either Party may have based upon events occurring prior to the termination date.
- Warranties.
- Mutual Warranties. Each Party hereby represents, warrants, and covenants to the other that: (i) it has the power to enter into and perform the Agreement; (ii) the Agreement’s execution has been duly authorized by all necessary corporate action of the Party; (iii) the Agreement constitutes a valid and binding obligation on the Party, enforceable in accordance with its terms; (iv) no consent or approval of any other person or governmental authority is necessary for the Agreement to be effective; (v) neither the execution or delivery of a Statement of Work nor the consummation of the transactions contemplated by thereby or hereby would constitute a default or violation of the party’s charter documents and/or other agreements; and (vi) it will comply with all applicable laws in the performance of its obligations under the Agreement.
- Higher Digital Warranties. Higher Digital hereby represents that the Product provided to Company do not and will not violate or infringe upon the Intellectual Property Right of any third party, and that the Product as provided to Company do not include any content or functionality or any programming devices (e.g., viruses, key locks, etc.) that would permit Higher Digital personnel or other third parties to access any of Company’s equipment connected to the Product without Company’s authorization. Higher Digital will provide commercially reasonable levels of security for the Product provided by Higher Digital hereunder and networks being utilized by Higher Digital in connection with the provision of the Product hereunder.
- EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. Company’s exclusive remedy (and Higher Digital’s sole obligation) for violation of its warranties set forth in the Agreement shall be for Higher Digital to promptly replace the defective portions of the Product; provided that if Higher Digital is unable to replace the same within 90 days of notification by Company of a breach, Company’s sole remedy is to terminate the Agreement, at which time Higher Digital will refund an equitable portion of any fees paid in advance by Company pursuant to each applicable Statement of Work in the immediately preceding twelve (12) months.
- LIMITATIONS ON LIABILITY AND INDEMNITY
- Exclusion of Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT IN CONNECTION WITH A PARTY’s BREACH OF SECTIONS 4 and/OR 5 HEREOF or PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONs pursuant to section 9 hereof. THE FOREGOING LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS Section 8.1 WILL BE CONSTRUED TO LIMIT EITHER PARTY’s OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 9 FOR DAMAGES AWARDED TO A THIRD PARTY EVEN IF SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES SUFFERED BY THAT THIRD PARTY.
- Limitation on Liability. EXCEPT FOR A PARTY’S PAYMENT OBLIGATIONS PURSUANT TO SECTION 3 AND EACH APPLICABLE STATEMENT OF WORK, BREACHES OF SECTIONS 4 AND/OR 5, AND THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, IN NO EVENT WILL either party’s LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO Higher Digital PURSUANT TO ALL APPLICABLE STATEMENT OF WORKS IN THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION RELATING TO SUCH LIABILITY AROSE.
- Indemnification from Company. Company shall indemnify and hold Higher Digital and its Affiliates, and their employees, representatives, agents, directors, officers, managers and members (the “Higher Digital Indemnified Parties”) harmless, and at Higher Digital’s option defend the Higher Digital Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Higher Digital Indemnified Parties arising out of (i) Company’s use of the Product other than in accordance with the Agreement and applicable law, or (ii) any alleged breach by Company of any provision of the Agreement. Higher Digital must promptly notify Company of such Claim.
- Indemnification from Higher Digital. Higher Digital shall indemnify and hold Company and its Affiliates, and their employees, representatives, agents, directors, officers, managers, members and/or shareholders (the “Company Indemnified Parties”) harmless, and at Company’s option defend the Company Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred in connection with any Claim brought against any of the Company Indemnified Parties arising out of any allegation that the Product violate or infringe upon the Intellectual Property Rights of any third party. Company must promptly notify Higher Digital of such Claim. If any of the Product and/or Software becomes, or in Higher Digital’s opinion is likely to become, the subject of an infringement claim under the Agreement, Higher Digital may, at its sole option and expense, either (i) procure for Company the right to continue using the applicable Product and/or Software, (ii) replace or modify the applicable Product and/or Software so that it becomes non-infringing, or (iii) solely if clauses (i) and (ii) are not commercially viable, terminate the Agreement. Notwithstanding the foregoing, Higher Digital will have no obligation with respect to any infringement claim based upon (i) any use of the Product and/or Software not in accordance with the Agreement, (ii) any use of the Product and/or Software in combination with other products, equipment, or software not supplied by Higher Digital, where such combination gives rise to the Claim, (iii) any modification of the Product and/or Software by (a) any person other than Higher Digital or its authorized agents or subcontractors or (b) by Higher Digital or its authorized agents or subcontractors in compliance with the designs, specifications or instructions of Company; (iv) the direct or contributory infringement of any process patent by Company through the use of the Product and Software; and (v) continued allegedly infringing activity by Company after Company has been notified of the possible infringement and been provided with a non-infringing alternative.
- Indemnity Process. Should any claim subject to indemnity be made against a party hereto, the party against whom the Claim is made agrees to provide the other party with prompt written notice of the Claim. The indemnifying party will control the defense and settlement of any Claim. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such Claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise. If a conflict of interest arises between the indemnitor and the indemnitee for the types of claims set forth herein, and the indemnitee under the appropriate section sends a written notice of such conflict of interest to the indemnitor, then the indemnitor under that section shall provide for the indemnification of the indemnitee for (i) the cost to hire and retain separate counsel and (ii) the cost of investigation, litigation and/or settlement of such Claims.
- General Terms
- Independent Contractors. The relationship of Higher Digital and Company established by the Agreement is that of independent contractors, and nothing contained in the Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.
- Governing Law; Jurisdiction. Each Statement of Work and these Terms are to be construed in accordance with and governed by the internal laws of the Commonwealth of Virginia, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the Commonwealth of Virginia to the rights and duties of the Parties. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, the Agreement may be brought against any of the Parties only in the courts of the Commonwealth of Virginia, located in or serving Fairfax County, Virginia or, if it has or can acquire the necessary jurisdiction, in the United States District Court for the Eastern District of Virginia. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION BETWEEN THE PARTIES.
- The Agreement may not be assigned, in whole or in part, by Company without the prior written consent of Higher Digital. Higher Digital shall have the right to assign or otherwise transfer the Agreement or any of its rights or obligations hereunder. Any purported assignment, sale, transfer, delegation or other disposition by Company, except as permitted herein, shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
- Recovery of Fees by Prevailing Party. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one Party against the other Party relating to the Agreement or the breach or alleged breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
- Severability. If the application of any provision of the Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of the Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
- Waiver. A waiver of a Party’s breach of any provision of these Terms or an applicable Statement of Work will not operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of that or any other provision of these Terms or applicable Statement of Work or any other Statement of Work.
- Force Majeure. Neither Party will be deemed in default of the Agreement to the extent that performance of its obligations (other than payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.
- Notices. Any notice or approval desired or required to be provided to a Party hereunder will be given to such Party in writing by overnight messenger (notice deemed effective the business day after such messenger’s acceptance (which acceptance must occur before such messenger’s required deadline) for next business day service), mail (notice deemed effective three (3) days after mailing), or e-mail (noticed deemed effective upon receipt of a return e-mail, other than an automatically generated return e-mail, indicating that the e-mail notice has been received), addressed to such Party at the address for such Party specified in the introductory paragraph of the Agreement. A Party may designate a substitute address by written notice to the other with the effectiveness of such notice governed by the terms of this Section. If the final day for giving notice is a Saturday, Sunday or nationally recognized holiday then the time for giving such notice will be extended to the next business day.
- Counterparts. Each Statement of Work may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Electronic, facsimile or scanned signatures shall have the same force as an original signature. Any Statement of Work incorporating these Terms by reference shall be deemed the Agreement of the Parties.
- Entire Agreement. The provisions of the Statement of Work and these Terms constitute the entire agreement between the Parties with respect to the subject matter hereof, and such Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter. In the event of any conflict between the terms of an applicable Statement of Work and these Terms, the terms of the Statement of Work shall control. The terms of a Statement of Work shall only be applicable to such Statement of Work and no other Statement of Work executed by the Parties.
- Amendments. The Agreement may be amended only by a writing signed by both parties, provided that the execution by the Parties of a Statement of Work amending these Terms, shall control as between the Parties and the interpretation of these Terms.
- Headings. The headings to the sections of these Terms are used for convenience only.
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