ENGINEBI SOFTWARE & SERVICES TERMS AND CONDITIONS

1. DEFINITIONS

“Affiliate” means, with respect to any entity, any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. 

“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means these terms and conditions and the Order that incorporates these terms and conditions.

“Order” means the purchase order, other written document (electronic or otherwise), or sign-up page, provided or accepted by Provider that addresses Subscriber’s rights to access the Services and the Fees payable with respect thereto.

“Personnel” means the employees, agents, contractors and other personnel of Provider that provide planning, analysis, support and other professional and administrative assistance as part of the Services.

“Platform” means the financial planning and analysis web applications and platform provided by Provider via engine.ramsayinnovations.com and/or any other website designated by Provider.

“Provider” means EngineBI, Inc. 

“Services” means the services provided by Provider as more particularly described in any applicable Order, including but not limited to, the Platform, any professional services, and any corresponding support services provided by Provider.

“Subscriber” means the legal entity or person accessing the Services and any Users of such entity or person. 

“Subscriber Data” means the data or information submitted by Users to, by, or through, the Services, or otherwise provided or made available to Provider by Subscriber.

“Third-Party Applications” means online Web-based applications and offline software products that are provided by third parties and that may interoperate with the Services.

“User” means any individual who uses the Services on Subscriber’s behalf or through Subscriber’s accounts or passwords, whether authorized or not.

2. USE OF THE SERVICES

2.1. Use of the Services.  During the Term, Provider shall provide, and Subscriber may access and use, the Services described in the Order on the terms and conditions set forth in the Agreement. 

2.2 Usage Obligations. Subscriber shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Subscriber Data and of the means by which Subscriber acquired Subscriber Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Provider promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement and all applicable laws and government regulations. 

Subscriber shall not (a) make the Services available to anyone other than authorized Users, (b) sell, resell, rent, or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, including privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services, Third-Party Applications, or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services, Third-Party Applications, or their related systems or networks.

2.3. Usage Limitations. Provider may place other limitations on the Services it deems reasonable or necessary in its sole discretion and as it may specify from time to time, including, but not limited to, suspending access to the Services. 

2.4 Necessary Information. Provider’s obligation to provide the Services, including any professional analysis or mentoring, is contingent upon Subscriber’s making available all necessary Subscriber Data, including but not limited to, any financial, accounting, and marketing information, in such formats and at such times as Provider determines is reasonably necessary in order to provide the Services to Subscriber.

2.5 ¬Personnel. Provider has sole discretion to determine which of its Personnel shall be assigned to perform any Services for Subscriber, and may change and/or replace such Personnel providing Services to Subscriber at any time and for any reason. Such Personnel providing Services to Subscriber shall be available within a commercially reasonable time during normal Central Time business hours or as otherwise disclosed in writing by Provider, but Provider makes no warranties or guarantees about any specific availability or response time or business hours of any one or all of such Personnel. 

2.6 Modification of Services.  Except as otherwise agreed in writing, Provider reserves the right, at any time, to modify, suspend, or discontinue any part of the Services with notice to Subscriber.  Subscriber agrees that Provider will not be liable to Subscriber or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.

2.7 Fees. Subscription pricing and other service fees for accessing the Services (collectively, “Fees”) shall be as stated in the Order. Except as provided in Section 9.2, Fees (and any applicable taxes) paid are non-refundable. Subscriber shall pay all Fees to Provider by bank transfer, credit card, or other commercially reasonable means as determined by Provider.

2.8 Expenses. Subscriber shall reimburse Provider for all reasonable expenses incurred by Provider in the performance of the Services, including, but not limited to, travel and lodging expenses. Provider may invoice Subscriber for reimbursable expenses at any time or require that such expenses be paid in advance.

2.9 Taxes. Subscriber shall pay all taxes and similar charges applicable to the Services, including all sales, use, excise, value-added, services, consumption, withholding and other taxes and duties assessed on the provision of Services (other than taxes on Provider’s income). Provider may invoice Subscriber for any such taxes at any time or require that such taxes be paid in advance.

2.10 Payment.  Subscriber shall pay all Fees, reimbursable expenses, and taxes promptly upon receipt of any invoice therefor or as otherwise provided in the Order. Provider may assess interest on unpaid Fees, expenses and taxes from the due date until the date paid at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. If payment of any Fee or tax is overdue, Provider may suspend provision of the Services, until the overdue amounts have been paid in full.  Subscriber agrees to pay all costs incurred by Provider in collecting overdue Fees, taxes, and interest, including reasonable attorneys’ fees. Provider may modify Fees in its sole discretion, with such modifications taking effect after the conclusion of the then current Term, except as otherwise agreed in writing among the parties.

3. THIRD-PARTY PROVIDERS

3.1. Third-Party Applications and Subscriber Data. The Services may provide the opportunity for, and/or require, the use and transfer of information to and or through Third-Party Applications. Provider will only provide Third-Party Applications access to Subscriber Data at the direction of Subscriber or its Users (including through application settings). Provider does not control how those Third-Party Applications use the information transferred to them, and accordingly, Subscriber should only transfer information from the Services to Third-Party Applications that meet Subscriber’s standards with respect to the use and storage of any Subscriber Data. Provider is not responsible for any disclosure, modification or deletion of Subscriber Data resulting from any access to such data or information by Third-Party Application providers. Any exchange of data between Subscriber and any Third-Party Applications is solely between Subscriber and the applicable third-party provider, even if accessed or transmitted through the Services. Provider’s obligation to provide the Services to Subscriber is contingent upon Subscriber’s access to and use of the Third-Party Applications deemed necessary by Provider for use of the Services.

3.2. Linked Sites. The Services may contain links to third-party websites and resources (collectively, “Linked Sites”).  These Linked Sites are provided solely as a convenience and not as an endorsement by Provider of the content on such Linked Sites.  Provider makes no representations or warranties regarding the correctness, accuracy, performance or quality of any content, software, service or application found at any Linked Site.  Provider is not responsible for the availability of the Linked Sites or the content or activities of such sites.  Access of any Linked Sites is at the users own risk, and access of such Linked Sites is subject to any applicable policies and terms and conditions of use, including but not limited to the Linked Site’s privacy policy.

4. PROPRIETARY RIGHTS

4.1. Reservation of Rights; Intellectual Property. Subject to the limited rights expressly granted hereunder, Provider reserves all rights, title, and interest in and to the Services, including all related intellectual property rights.  No rights are granted to Subscriber hereunder other than as expressly set forth herein.  Subscriber acknowledges that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, on, incorporated in, or related to the Services are owned by Provider or its service providers, partners, or Affiliates.  Neither this Agreement (nor Subscriber’s access to the Services) transfers to Subscriber or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth herein. There are no implied licenses granted under this Agreement.

4.2. Restrictions. Subscriber shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

4.3. Suggestions. Provider shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including any Users, relating to the operation of the Services, and Provider is under no obligation to treat such feedback as confidential.

4.4 Publicity. Provider may reference Subscriber as a customer of Provider and may use Subscriber’s trademark and/or logo (the “Marketing Information”) to identify Subscriber as such in any marketing materials, subject to Subscriber’s trademark and logo usage guidelines provided by Subscriber to Provider in writing (the “Marketing Uses”). Subscriber hereby grants Provider a limited, revocable, non-exclusive, sublicensable right to use the Marketing Information for the Marketing Purposes during the Term.

4.5 Deliverables. In connection with the performance of the Services, Provider may provide Subscriber with reports, templates, reporting forms, and other materials (“Deliverables”). During the Term, Subscriber shall have a nontransferable, non-exclusive, right and license to use, copy, modify and prepare derivative works of the Deliverables solely for its internal business purposes.  Subscriber’s rights with respect to the Deliverables and any derivatives thereof are limited to internal use rights and the Deliverables and such derivatives may not be provided to third parties or otherwise commercially exploited by Subscriber.  Except for the limited license granted hereby, all intellectual property rights in the Deliverables remain in and/or are hereby assigned to Provider. 

4.6 No Restrictions. In no event shall Provider be precluded from developing for itself, or for others, materials that are similar to or competitive with the Deliverables, irrespective of their origins.  In addition, Provider shall be free to use for itself and for any other party its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques within the scope of its consulting practice that are used in the course of providing the Services.

4.5  Subscriber Data. 

(a) Subscriber hereby grants to Provider a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, copy, index, create derivative works based upon, and otherwise process any Subscriber Data, for the purposes of: (i) providing, troubleshooting, improving, and monitoring the Services, and (ii) Provider’s internal analysis, analytics, benchmarking, preparation of statistics and aggregated data, and internal or external product development of any kind. All of such foregoing purposes shall include the development of derivative works from the Subscriber Data, including but not limited to derivative works such as new data sets, reports, analysis, databases, software programs, written publications, and any other derivative works. 

(b) Subscriber represents and warrants that: (i) it has taken all steps necessary (including but not limited to, providing or obtaining proper notices and consents) and obtained all licenses and any other rights necessary under copyright, trademark or other intellectual property law, to comply with all applicable laws (including privacy laws) in connection with the transfer of Subscriber Data to Provider hereunder, (ii) the transfer to, and use of, Subscriber Data by Provider as contemplated by this Agreement will not violate any applicable laws (including privacy laws) or cause Provider to violate any applicable laws, and (iii) no Subscriber Data is or will be unlawful, libelous, defamatory, obscene, pornographic, or profane, or constitute or encourage conduct that would be considered a criminal offense.

(c) Provider may monitor, screen, post, remove, modify, store and review Subscriber Data or communications sent through the Services to ensure proper and lawful function in the Services, including to ensure that the Subscriber Data or communication conforms to this Agreement, without prior notice.

5. CONFIDENTIALITY

5.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential 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. Provider’s Confidential Information shall include the Services, the terms and conditions of this Agreement, and its business processes, technology and technical information, and product plans and designs. Confidential Information shall 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.

5.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party designed to provide reasonable protections to the Confidential Information.

5.3. Protection of Subscriber Data. Without limiting the above, Provider shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data.

5.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so. The Receiving Party shall, to the extent practicable, give the Disclosing Party prior notice of such 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.

5.5 Aggregated Data. Notwithstanding the foregoing, any aggregate and/or deidentified data not linkable to a particular user, person, entity, or account (“Aggregate Data”), regardless of how such Aggregate Data is collected or created (including from Subscriber Data), shall not be considered Confidential Information and Provider may use, process, reproduce, sell, publicize, or otherwise exploit such Aggregate Data in any way and without any compensation or remuneration to Subscriber.

6. WARRANTIES AND DISCLAIMERS

6.1 Disclaimer. THE SERVICES ARE PROVIDED TO SUBSCRIBER ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PROVIDER MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES, INCLUDING ANY INFORMATION REGARDING THE VALUE, CAPITALIZATION, FINANCES, OR ADVICE REGARDING ANY COMPANY OR ANALYSIS. SUBSCRIBER IS RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SERVICES, AND ANY INFORMATION AVAILABLE THEREIN IS AT SUBSCRIBER’S SOLE RISK. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.   

7. INDEMNIFICATION

7.1. Indemnification by Provider. Provider shall defend Subscriber against any claim, demand, suit, or proceeding made or brought against Subscriber by any third party (each, a “Claim”) alleging that the use of the Services as permitted hereunder infringes or misappropriates the U.S. intellectual property rights of such third party, and shall indemnify Subscriber for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Subscriber in connection with any such Claim; provided, that Subscriber (a) promptly gives Provider written notice of the Claim; (b) gives Provider sole control of the defense and settlement of the Claim (provided that Provider may not settle any Claim unless the settlement unconditionally releases Subscriber of all liability); and (c) provides to Provider all reasonable assistance, at Provider’s expense. This Section 7.1 states Provider’s sole liability to Subscriber, and Subscriber’s exclusive remedy against Provider, for any type of claim for infringement or violation of intellectual property or other proprietary rights. 

7.2. Indemnification by Subscriber.  Subscriber shall defend and hold harmless Provider against any Claim made or brought against Provider by any third party arising out of Subscriber’s use of the Services or provision of the Subscriber Data to Provider, and shall indemnify Provider for any and all losses, damages, costs, and other amounts (including reasonable attorney’s fees) suffered or incurred by Provider in connection with any such Claim or resulting from or arising out of any breach of this Agreement by Subscriber. 

8. LIMITATION OF LIABILITY

8.1 Waiver of Damages. PROVIDER SHALL NOT HAVE ANY LIABILITY WHATSOEVER, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE OR THE 

SERVICES, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO RELIANCE BY ANY PARTY ON ANY CONTENT OR INFORMATION OBTAINED FROM OR THROUGH THE USE OF THE SERVICES, OR THAT ARISES IN CONNECTION WITH MISTAKES OR OMISSIONS IN, OR DELAYS IN TRANSMISSION OF, INFORMATION TO OR FROM USERS, INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SERVICES, OR VIRUSES, REGARDLESS OF THE CAUSE.

8.2 Maximum Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PROVIDER’S LIABILITY TO SUBSCRIBER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES, OR SUBSCRIBER’S USE OF THE SERVICES, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF THE AMOUNT OF FEES PAID BY SUBSCRIBER TO PROVIDER OVER THE PRECEDING TWELVE (12) MONTHS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. 

9. TERM AND TERMINATION

9.1. Term of Agreement. This Agreement commences on the date indicated in the applicable Order and continues for the term set out in such Order (the “Initial Term”), and, except as otherwise specified in the applicable Order, shall automatically renew for additional one (1) year periods (each a “Renewal Term”, and each Renewal Term and the Initial Term, a “Term” and collectively, the “Term”), unless either party provides written notice to the other party at least thirty (30) days prior to the end of the then-current Term that it has elected not to renew the Agreement. 

9.2. Termination. A party may terminate this Agreement for cause: (i) upon fifteen (15) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, 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. Notwithstanding the foregoing, Provider may terminate this Agreement for any reason or no reason, with thirty (30) days written notice to Subscriber. If a “Trial Period” is provided for in the applicable Order, Subscriber may terminate this Agreement with notice to Provider at any time during the Trial Period, subject to the terms and conditions set forth in the Order. In the event Provider terminates this Agreement other than for an uncured material breach, or where Subscriber terminates this Agreement pursuant to an applicable Trial Period, if any, Provider shall refund any pre-paid and unused Fees.

9.3. Surviving Provisions. 4 (Proprietary Rights), 5 (Confidentiality), 6 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 10 (Notices, Governing Law and Jurisdiction, and Arbitration), and 11(General Provisions) shall survive any termination or expiration of this Agreement.

10. NOTICES, GOVERNING LAW AND JURISDICTION, AND ARBITRATION

10.1. Manner of Giving Notice. Provider may send notices pursuant to this Agreement to Subscriber at the e-mail address Provider has on file for Subscriber, and such notices will be deemed received by Subscriber seventy-two (72) hours after they are sent.  Subscriber may send notices to Provider pursuant to this Agreement to [email protected], and such notices will be deemed received seventy-two (72) hours after they are sent.

10.2. Agreement to Governing Law and Jurisdiction. This Agreement, and all claims or causes of action (whether in contract, tort, or statute) that may be based upon, arise out of, or relate to this Agreement, shall be governed by, and enforced in accordance with, the internal laws of the State of Illinois, including its statutes of limitations.  Each party consents to the exclusive jurisdiction of the federal and state courts located in Chicago, Illinois for any dispute not subject to arbitration, if any.

10.3. Dispute Resolution. Except in situations in which injunctive relief is necessary, if any dispute arises between the parties in connection with this Agreement, the parties shall first attempt to resolve the dispute through good faith negotiations between parties authorized to settle the dispute on behalf of the parties.  If such negotiations fail to resolve the dispute within thirty (30) days, each party shall have the right to commence binding arbitration in accordance with this Agreement.

10.4. Arbitration. Any dispute between Subscriber and Provider, and their respective agents, employees, officers, directors, principals, successors, assigns, subsidiaries, or affiliates arising from or relating to this Agreement and its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration in accordance with the rules of the American Arbitration Association by a single arbitrator appointed in accordance with said rules. The arbitration shall take place in Chicago, Illinois and the arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The parties agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Provider nor Subscriber are entitled to arbitrate any Covered Dispute as a class, representative, or private attorney action and the arbitrator will have no authority to proceed on a class, representative, or private attorney general basis. If any provision of the agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative or private attorney general arbitration).  In any dispute resolution proceeding between the parties in connection with this Agreement, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs in such proceeding from the other party.

10.5 NO CLASS ACTION.  TO THE EXTENT ALLOWED BY LAW, SUBSCRIBER AND PROVIDER EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.

10.6 NO TRIAL BY JURY.  TO THE EXTENT ALLOWED BY LAW, SUBSCRIBER AND PROVIDER WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.

11. GENERAL PROVISIONS

11.1. Export Compliance. Subscriber represents and warrants that Subscriber is not named on any U.S. government list of persons or entities prohibited from receiving exports. Subscriber shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services and Subscriber shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition, or restriction.

11.2. 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.

11.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

11.7. Entire Agreement; Modification. The Order and this Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of a conflict between this Agreement and an Order regarding or concerning the Services, the Order shall control. 

11.8. Force Majeure. Neither party will incur any liability to the other party resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences or forces beyond the reasonable control and without the negligence or other fault of such party.