Effective June 3, 2022
 

Prezi Business Terms and conditions

These Prezi Business Terms and Conditions (the “Agreement”), effective as of the paid purchase date (the “Effective Date”) are made between the purchaser (“Customer”), and Prezi Inc., a Delaware corporation with a place of business at 101 Broadway, 2nd floor, Oakland, CA 94607 (“Prezi”).

1.               USE OF PRESENTATION AND / OR VIDEO SERVICES.

1.1             Prezi hereby grants to the customer identified in the Order Form (the “Customer”) and its employees, consultants, contractors, agents, or other entities affiliated with Customer (collectively, “Authorized Users”) a non-exclusive, non-transferable (except as otherwise expressly permitted in this Agreement), world-wide, limited, revocable license for the Term of this Agreement to make use of the “Prezi Business” online Presentation and / or Video Services specified in the Order Form (the “Presentation and / or Video Services”).  For the purposes of this Agreement, the rights granted in this Section 1.1 are collectively referred to as the “License Grant.”

1.2             Customer is responsible for all authorized and unauthorized access, activities and charges associated with the Customer's account and/or password(s) for the Presentation and / or Video Services, except for unauthorized charges that can reasonably be determined to be the result of Prezi's mistake, omission or negligence in providing sufficient safeguards against unauthorized third party access to Customer's account. Customer is responsible for the confidentiality of its password(s), for all charges incurred from the use of the Presentation and / or Video Services with its password(s) and for any and all charges made through the Customer's account by Customer's employees, agents, principals, consultants, or other entities or individuals in the employ of or engaged by Customer regardless of the reason for such charges.

1.3             Customer will not, nor knowingly allow any third party under Customer’s direction or control to, use the Presentation and / or Video Services to: (i) harass, threaten, impersonate or intimidate anyone; (ii) upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or makes unauthorized disclosure of confidential or proprietary information or trade secrets; (iii) infringe, violate or misappropriate the intellectual property, copyright, publicity, privacy or other rights of any third party; (iv) violate any applicable law, rule or regulation; (v) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “affiliate links” or any other form of solicitation; (vi) transmit any worms or viruses or any code of a destructive nature; or (vii) claim or suggest an affiliation, sponsorship or endorsement on the part of Prezi. Prezi reserves the right to remove from display and/or delete any content, data or other material from the Presentation and / or Video Services which, in Prezi’s reasonable business judgment, violates any of the above prohibitions or as directed by law enforcement agencies, regulators or legal process.

1.4             Prezi owns all right, title and interest in and to the Presentation and / or Video Services.  Prezi reserves all rights in and to the Presentation and / or Video Services and all other Prezi software, products and services that are not expressly granted in this Agreement.  Nothing in this Agreement will be construed as granting Customer any property rights in the Presentation and / or Video Services or to any invention or any patent, copyright, trademark or other intellectual property right that has been issued, or that may issue, based on the Presentation and / or Video Services.  The Presentation and / or Video Services are licensed hereby, not sold.

 

2.               CUSTOMER CONTENT.  

2.1 For the purposes of this Agreement, “Customer Content” means any content uploaded by or on behalf of Customer to Prezi’s systems, software and platform for use with the Presentation and / or Video Services.  Customer hereby grants to Prezi a limited, world-wide, non-exclusive, revocable, royalty-free, fully paid, sublicensable and transferable license for the Term of this Agreement to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, distribute and transmit the Customer Content: (i) for the purpose of providing the Presentation and / or Video Services to Customer and (ii) to the extent Customer has designated any portion of the Customer Content as “Public Content” through the content management features of the Presentation and / or Video Services, for Prezi to make use of such “Public Content” in connection with promotion and marketing of Prezi’s products and services. Customer also hereby grants to Prezi a world-wide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to (a) analyze the Customer Content for the purposes of quality control, benchmarking and improving the Presentation and / or Video Services and (b) maintain a back-up copy of Customer’s “Public Content” indefinitely. Customer represents and warrants that it has all rights, clearances and authority necessary to grant the foregoing licenses to Prezi. Customer reserves all rights to the Customer Content that are not expressly granted in this Agreement.

2.2 Until the later of: (i) all pending matters relating to this Agreement (i.e., disputes) are closed; or (ii) six (6) years after the termination or expiration of this Agreement (as such period may be extended due to adjustments in regulatory requirements or Customer’s records retention policy), Prezi will maintain and provide access upon Customer’s request to its records and documentation related to its provisions of the Presentation and / or Video Services under this Agreement.

3.               TECHNICAL SUPPORT.  Prezi will provide Customer with standard technical support for the Presentation and / or Video Services which Prezi makes generally available to its customers at Customer’s level of service (the “Technical Support Services”).

4.               AVAILABILITY.  Prezi will use commercially reasonable efforts to make the Presentation and / or Video Services available 24 hours per day, 7 days per week, except for (i) planned downtime for upgrades and maintenance to the Presentation and / or Video Services (of which Prezi will use commercially reasonable efforts to notify Customer in advance), (ii) emergency maintenance and (iii) unavailability caused by a Force Majeure Event (as defined below).  Prezi shall maintain in effect at all times during the Term a disaster recovery and business continuity plan, including off-site disaster recovery capabilities, that permit Prezi to recover from a disaster and continue providing services to customers, including Customer

5.               PROFESSIONAL SERVICES.

5.1             This Section 5 applies only if Customer has ordered professional services from Prezi. Prezi will provide the services specified in the applicable Statement of Work (“SOW”) and in any subsequent SOWs entered into by and between the Parties subject to this Agreement (collectively, the “Professional Services”).  Prezi will perform the Professional Services in a timely, workmanlike, and professional manner.

5.2             Customer will provide all reasonable assistance and cooperation to Prezi reasonably necessary to permit Prezi to perform the Professional Services, including assigning a project manager to (i) reasonably assist and coordinate with Prezi in connection with its performance of the Professional Services, (ii) serve as a principal point of contact with Prezi, and (iii) coordinate the review, analysis and acceptance of any deliverables specified in the applicable SOW (each, a “Deliverable” and, collectively, the “Deliverables”).  Customer acknowledges that failure to provide such reasonable assistance and cooperation may impair Prezi’s ability to provide the Professional Services and may result in additional charges. Prezi will discuss any such reasonably necessary additional charges with Customer prior to incurring the charges.

5.3             Unless set forth to the contrary in the applicable SOW, Customer will be responsible for making, at Customer’s sole expense, any changes or additions to Customer’s hardware and software systems that may be reasonably required to support Prezi’s performance of the Professional Services or the installation, implementation and/or use of the Deliverables.

5.4             The Professional Services will be performed for the project fee or at the hourly rate specified in the applicable SOW, plus reimbursement of Prezi’s reasonable out-of-pocket expenses incurred in the performance of the Professional Services; provided that all such expenses must be approved in advance by Customer and be substantiated by appropriate written receipts.  Prezi’s invoices for the Professional Services will be paid by Customer within thirty (30) days of the invoice date.

5.5             Upon payment in full of Prezi’s invoices for the Professional Services, Customer will have a worldwide, royalty-free, non-exclusive right and license to use, modify and create derivative works of, copy, distribute, transmit, display, disclose, and practice and process or method embodied in, the resulting Deliverables solely in connection with Customer’s use of the Presentation and / or Video Services.  

5.6             Prezi reserves all rights to the Deliverables that are not expressly granted in this Agreement.  Nothing in this Agreement will be construed as granting Customer any property rights in or to the Deliverables or in or to any invention or any patent, copyright, trademark or other intellectual property right that has been issued, or that may issue, based on the Deliverables. The Deliverables are licensed hereby, not sold.

6.               MARKETING.  Prezi and Prezi’s personnel may not use the trademarks, logos, names, or other likenesses of Customer or its affiliates in advertising, marketing, press releases, or other communications except with the prior written consent of Customer in each instance. Prezi shall not make any announcement concerning the awarding of the Agreement, any Order Form or SOW, or any purchase order without the prior written consent of Customer.  At its discretion, Customer may withdraw its consent at any time.  

7.               CONFIDENTIALITY.

7.1             For the purposes of this Agreement, “Confidential Information” means all materials and information, written or oral, disclosed directly or indirectly to the Recipient through any means of communication (e.g., electronic, paper or other media, orally or through observation) (a) information that is not generally known to the public, whether of a technical, business or other nature that relates to this Agreement; and (b) information that is disclosed during the term of this Agreement, and that is designated as “confidential” or “proprietary” or other words of similar meaning.  For the avoidance of doubt, Customer’s Confidential Information shall include the Customer Content, any employee information including, without limitation, in the form of login information or credentials or other employee data uploaded or provided to the Presentation and / or Video Services, and non-public personal information of customers under the Gramm-Leach-Bliley Act.   Confidential Information will not include any information which the Recipient can demonstrate (i) was publicly known or made generally available in the public domain through no fault of the Recipient; (ii) is already in the lawful possession of the Recipient at the time of disclosure by the Discloser, if the Recipient was not then subject to obligations of confidentiality with respect to the information; (iii) is obtained by the Recipient from a third party without a breach of such third party's obligations of confidentiality; or (iv) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.  Confidential Information may include a third party’s confidential information.

7.2             Without the Discloser’s prior written consent in each instance, the Recipient shall not use the Discloser’s Confidential Information for any purpose except as reasonably necessary to perform its obligations or exercise its rights under this Agreement.  

7.3 The Recipient will not, without the prior written consent of the Discloser, disclose any Confidential Information of the Discloser, in whole or in part, to any person or entity except to those Representatives of the Recipient with a reasonable need to know in connection with the Agreement, provided that each Representative must be informed of the Recipient’s obligations under this Section 7 and provided further that Representatives who or that are not employed by the Recipient or its affiliates must be under a contractual obligation or professional duty to protect such Confidential Information under terms at least as restrictive as those set forth in this Agreement.  The Recipient is responsible for any breach of any provision of this Agreement by its Representatives. 

7.4 The Recipient agrees that it will take reasonable measures to protect the confidentiality of and avoid unauthorized disclosure and unauthorized use of the Discloser’s Confidential Information.  Without limiting the foregoing, the Recipient will use the same degree of care and protection with respect to the Discloser’s Confidential Information that it uses to protect its own confidential information of a like kind, but in all events at least a reasonable degree of care.  

7.5 Each party is and shall remain the sole and exclusive owner of its Confidential Information, including any copies or derivatives thereof. Except for the use and disclosure rights expressly granted herein, no express or implied license is granted to the Recipient in respect of the Discloser’s Confidential Information. The Recipient will reproduce the Discloser’s proprietary rights notices on any such copies of Discloser’s Confidential Information, in the same manner in which such notices were set forth in or on the original, if any.

7.6             Subject to compliance with the further terms of this Section, the Recipient (including its Representatives) shall have the right to disclose all or that portion of the Discloser’s Confidential Information that it is legally compelled to disclose. If the Recipient or any of its Representatives are legally compelled to disclose the Discloser’s Confidential Information, to the extent permitted by applicable law, prior to any such disclosure, the Recipient will promptly notify the Discloser so that the Discloser, at its expense, may seek a protective order or take other appropriate action or waive compliance with the provisions of this Agreement.  The Recipient will reasonably cooperate in the Discloser’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If such protective order or other remedy is not obtained within a reasonable time, or the Discloser waives compliance with the provisions of this Agreement, the Recipient will use all reasonable efforts to ensure that any individual or entity legally compelled to disclose any of the Discloser’s Confidential Information will furnish only that portion of such Confidential Information that Recipient’s counsel determines the individual or entity is legally required to disclose, and Recipient will exercise all reasonable efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded such Confidential Information. 

7.7 The Recipient shall promptly notify the Discloser of any unauthorized use or disclosure of the Discloser’s Confidential Information, whether known or suspected, and shall use all reasonable efforts to mitigate any harm that may be caused by such unauthorized use or disclosure and reasonably cooperate with the Discloser in any efforts by the Discloser to mitigate any harm that may be caused by such unauthorized use or disclosure.

7.8 Promptly following the Discloser’s request, the Recipient shall destroy (and shall cause its Representatives to destroy) all or that portion of the Discloser’s Confidential Information identified in such request (including any copies thereof, and any other materials that embody the Discloser’s Confidential Information, including analyses, compilations, studies, or other documents prepared by or on behalf of the Recipient), and shall confirm such destruction in writing. Notwithstanding the foregoing, the Recipient may retain copies of the Discloser’s Confidential Information (i) as part of the archival records (including backup systems) maintained by the Recipient in the ordinary course of business, but only to the extent, and only as long as, required by the Recipient’s records retention policies; or (b) to the extent, and only as long as, required by applicable laws. 

7.9 The NDA executed between the parties, if applicable, shall terminate effective as of the Effective Date, and from and after the Effective Date, all Confidential Information disclosed thereunder shall be governed by the terms of this Agreement.

7.10 “Discloser” means the party that, directly or indirectly (including through its Representatives), has disclosed Confidential Information to the other party or its Representatives.

“Recipient” means the party that, directly or indirectly (including through its Representatives), has received Confidential Information from the other party or its Representatives. 

“Representative(s)” means, in respect of a party, that party and its affiliates with a need to know, and their respective directors, officers, employees, agents, contractors, subcontractors, service providers, and advisors (including, without limitation, attorneys, accountants, consultants, bankers, and financial advisors). 

8.              INFORMATION SECURITY 

8.1 Prezi acknowledges that Customer is required to comply with the information security standards required by applicable laws and implementing state and federal regulations. 

FEES, PAYMENT AND TAXES. 

9.1             The annual fees for the Initial Term of this Agreement (as defined below) are due and will be paid to Prezi by Customer upon the “Start Date” specified in the applicable Order Form.  The annual fees due for each Renewal Term of this Agreement (as defined below) will be invoiced to Customer by Prezi no later than thirty (30) days prior to the commencement of such Renewal Term and will be due and will be paid to Prezi by Customer no later than the commencement of such Renewal Term.

9.2             In addition to any other remedies available to Prezi, Prezi may charge a late fee of one percent (1%) per month (or the maximum amount permitted by applicable law, whichever is less) for any undisputed late payments hereunder.

9.3             Customer is solely responsible for any and all applicable taxes, levies, charges and fees incurred or that may be payable to any applicable taxing authority in connection with the transactions hereunder, other than any income tax incurred by Prezi.  All fees stated herein are net of any applicable taxes.

 

10.               TERM AND TERMINATION.  

10.1             Unless terminated earlier as provided below, this Agreement will commence on the Effective Date and will remain in full force and effect for an initial period of one (1) year (the “Initial Term”), after which this Agreement will automatically renew for additional consecutive one (1) year periods (each a “Renewal Term”), unless either party provides advance written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or any then-current Renewal Term.  The Initial Term and any Renewal Terms are together referred to herein as the “Term”.

10.2             This Agreement may be terminated by either party at any time upon written notice to the other party in any of the following circumstances: (i) for the material breach of the other party, which material breach has remained uncured for a period of thirty (30) days from the date of written notice of such breach, (ii) for the other party’s breach of its confidentiality obligations hereunder, or (ii) upon thirty (30) days’ prior written notice to the other party if such other party becomes subject to an adjudication of bankruptcy under any applicable bankruptcy or insolvency law, or the appointment of a receiver for business or property of the other party or the making of any general assignment for the benefit of its creditors.

10.3 Customer may terminate this Agreement or any Order Form at any time upon thirty (30) business days’ written notice to Prezi.

10.4             Upon the expiration or termination of this Agreement:

10.4.1          The License Grant to Customer and the Professional Services (if ordered by Customer and in effect at the time of such expiration or termination) will terminate; and

10.4.2          The Recipient will promptly destroy upon Discloser’s written request the Discloser’s Confidential Information identified in such request in accordance with the terms of Section 7.8 of the Agreement. 

10.6             Any provision of this Agreement, including an Order Form, that expressly or by its nature may reasonably be interpreted or construed as surviving termination of the Agreement and/or an Order Form, as applicable, will survive the termination of the Agreement and/or Order Form. Sections 2 and 9 will survive any termination or expiration of this Agreement for as long as either party has any pending rights, duties or obligations thereunder.  Sections 1.3, 1.4, 5.6, 6, 7, 8, 10.4, 10.5, 10.6, and 11 – 15, inclusive, will survive any termination or expiration of this Agreement.

11.             REPRESENTATIONS, WARRANTIES AND REMEDIES; DISCLAIMERS.

11.1           Each party represents and warrants to the other party that (i) it has full right, power and authority to enter into and fully perform its obligations under this Agreement, (ii) the execution, delivery and performance of the terms and conditions of this Agreement do not conflict with any other agreement to which it is a party or by which it is bound, and (iii) it will at all times comply with all laws, rules and regulations applicable to its activities, duties and obligations hereunder.

11.2           Prezi represents and warrants that the Presentation and / or Video Services, the Professional Services and the Deliverables (collectively, the “Prezi Assets”) will not at the time of their delivery to Customer infringe, violate, or misappropriate the intellectual property rights of any third party.  During the term of this Agreement, if Prezi is found to be in violation of this warranty, Prezi will, at its sole expense, modify or replace the infringing Prezi Assets so that they comply with this warranty, without any material loss of the Prezi Assets’ functionality, or to obtain the right for Customer to continue to use the Prezi Assets consistent with this Agreement.  Customer will permit Prezi a commercially reasonable amount of time to effect such modification or replacement or to obtain such right prior to pursuing any other remedy for breach of this warranty.

11.5 Prezi warrants that (i) when first made available to Customer, the Prezi Assets shall not contain any malware including, without limitation, any automatic shut-down, lockout, virus, spyware, worm, trap door, Trojan horse, back door, time bomb or other similar mechanism (e.g., timer, clock, counter or other limiting routine, instruction, or design) that would erase data or programming or otherwise cause any system to become inoperable or incapable of being used in accordance with its documentation or intended purpose, or aid in a data leak (individually or collectively, “Malicious Code”). 

11.7           EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, PREZI MAKES NO REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.  EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, PREZI’S PRODUCTS AND SERVICES ARE PROVIDED “AS-IS” AND PREZI DISCLAIMS ANY REPRESENTATION THAT ITS PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES WILL BE UNINTERRUPTED OR ERROR FREE.

12.             INDEMNIFICATION AND INSURANCE. 

12.1           Prezi will indemnify, hold harmless and defend Customer and its shareholders, directors, officers, employees and agents (individually, a “Customer Indemnitee,” and collectively, the “Customer Indemnitees”) from and against any action, claim, proceeding, or damage, including reasonable costs and attorney's fees, asserted by any third party (a “Claim”), arising out of or relating to: (1) any alleged or actual infringement of any patent, trademark, service mark, or copyright, or alleged or actual misappropriation of any trade secret on the part of Prezi and/or its employees or agents in connection with the Presentation and / or Video Services and/or Professional Services provided by Prezi under this Agreement, except to the extent that such Claim results from (i) any Customer Content or (ii) Customer’s use of the Presentation and / or Video Services and/or Professional Services in material breach of this Agreement; (2) any negligent or more culpable acts or omissions of Prezi or its personnel; or (3) Prezi’s breach of the Agreement.

12.2           Customer will indemnify, hold harmless and defend Prezi, its shareholders, directors, officers, employees and agents from and against any Claim directly resulting from (i) any Customer Content or (ii) Customer’s use of the Presentation and / or Video Services and/or Professional Services in material breach of its obligations under this Agreement.

12.3           A party seeking defense and indemnification under Section 11 shall promptly notify the other party in writing of the Claim. A party entitled to indemnity and defense hereunder (an “Indemnified Entity”) shall permit the party providing such indemnity and defense (the “Indemnifying Party”) to defend and/or settle any such Claim; provided, however that the Indemnifying Party shall not enter into any settlement agreement that would result in any admission by the Indemnified Entity or payment by the Indemnified Entity without the Indemnified Entity’s prior written consent.  In addition, without the Indemnified Entity’s prior written consent, any settlement of the Claim shall not adversely affect the Indemnified Entity’s rights hereunder or impose any obligations on the Indemnified Entity. The Indemnified Entity may at its election be represented by separate counsel at its own expense. The Indemnified Entity agrees to reasonably cooperate with and provide the Indemnifying Party all reasonable assistance (at the expense of the Indemnifying Party) in connection with the defense or settlement of any such Claim.

12.4 Prezi shall maintain at its own expense during the Term and for a period of three (3) years thereafter the insurance coverages required by national law or as otherwise agreed between the Parties. each of which must be issued by an insurance company having an AM Best rating of A- or better. Prezi shall maintain deductibles that are appropriate in relation to the risks associated with its business and its financial strength and is responsible for all such deductibles and self-insured retentions. Except to the extent Customer agrees otherwise in writing, Prezi shall require all subcontractors to carry the same coverages at the same limits set forth herein

13.             LIMITATION OF LIABILITY.  EXCEPT IN CONNECTION WITH THE BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER OR THE INDEMNIFICATION OF THIRD PARTY CLAIMS, 

13.1 NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES TO THIS AGREEMENT.  EXCEPT IN CONNECTION WITH THE BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, THE INDEMNIFICATION OF THIRD PARTY CLAIMS OR NON-PAYMENT OF ANY AMOUNTS DUE HEREUNDER, IN NO EVENT WILL TOTAL CUMULATIVE DAMAGES EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PREZI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

13.4 THE TERMS OF SECTIONS 13.1 AND 13.2 SHALL NOT APPLY TO: (i) CLAIMS ARISING AS A RESULT OF PERSONAL INJURY, INCLUDING DEATH, CAUSED BY A PARTY OR ITS PERSONNEL; (ii) CLAIMS ARISING AS A RESULT OF DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY A PARTY OR ITS PERSONNEL; (iii) PREZI’S OBLIGATIONS UNDER SECTION 12 (OR A BREACH OF SUCH OBLIGATIONS); (iv) PREZI’S BREACH OF SECTION 7 OR SECTION 8; OR (v) PREZI’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.

14.             DISPUTE RESOLUTION.  All disputes between the parties arising from or concerning in any manner the subject matter of this Agreement will be resolved through binding arbitration by a single arbitrator pursuant to the American Arbitration Association’s rules applicable to commercial disputes.  The arbitration will be held in San Francisco, California.

15.             GENERAL.

15.1           This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles.  This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California.  If Customer is outside of the United States, the parties agree that rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.

15.2           If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.

15.3           Failure by a party to enforce any term of this Agreement shall not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.

15.4           A party may not assign or transfer this Agreement, in whole or in part, including by operation of law, without the other party’s prior written consent, and any assignment or transfer of this Agreement by a party in violation of the foregoing will be null and void.

15.5           The parties are independent contractors.  Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.

15.6           This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.

15.7           Neither party will be liable for any failure or delay in its performance under this Agreement due to causes, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, terrorism, failure of suppliers and governmental action, which are beyond its reasonable control (each, a “Force Majeure Event”).

15.8           The section titles and numbering of this Agreement are displayed for convenience and have no legal effect.

15.9         In the event that any a provision of this Agreement shall be found to be illegal or unenforceable, the parties will consult each other to settle the situation, and this Agreement shall nevertheless remain in full force and effect, and such provision shall be deemed severed and replaced with a legal and enforceable provision as consistent as possible with the intent of the parties. 

15.10          This Agreement may be executed in multiple counterparts and such counterparts may be exchanged by electronic transmission (including without limitation by email attaching a .PDF copy of same), each of which counterparts shall be deemed an original and all of such counterparts, when taken together, shall constitute but one and the same original instrument. 

15.11         This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.

15.12        Any written notice, request, consent, approval, or other communication required or permitted to be given pursuant to the Agreement shall be in writing and shall be deemed to have been given: (i) upon delivery if delivered personally, (ii) one (1) business day after deposit with a national overnight courier, or (iii) upon receipt if sent via facsimile (provided a confirmation is provided via one of the methods described in subsections (i) or (ii)), in each case addressed to the recipient at the applicable addresses and/or facsimile numbers set forth below, or to such other addresses and/or facsimile numbers as may be specified by a party upon written notice given in accordance with the terms of this Section.

15.13 The Agreement may be amended and supplemented only by a written instrument signed by both parties.  A Customer’s payment for services is considered execution of this Agreement.