Master Service Agreement
Version: January 25, 2023
This Master Service Agreement (“MSA”) together with any Order Forms (as defined below and together with the MSA collectively the “Agreement”) is made by and between InMapz Inc. (“InMapz”) and the contracting party identified on the Order Form (“Customer”) (where InMapz and Customer are together referred to herein collectively as the “Parties” and each individually as a “Party”) effective as of the date of last signature on the Order Form between the Parties that references the MSA (the “Effective Date”).
The Parties hereby agree: (a) that this MSA governs Customer’s and its Affiliates’ and Authorized Users’ use of the InMapz Software, Support, Professional Services and Documentation and (b) to the terms and conditions of the Agreement including any specific services terms, product details and any applicable license and/or subscription terms set forth in applicable Order Form(s) and SOW(s), each of which become binding on the Parties and are incorporated into this MSA upon execution of an Order Form and/or SOW. If Customer enters into the Agreement on behalf of another Person (including any Affiliates), Customer represents that Customer has the authority to bind such Person. If Customer does not have such authority, or if Customer does not unconditionally agree to the Agreement, neither Customer nor any such other Person shall have any right to use the Software, Support, Documentation and/or Professional Services. Affiliates of either Party may also execute Order Forms subject to compliance with terms and conditions of the MSA.
1. DEFINITIONS.
“Affiliate” means, with respect to a Party, any corporation or other business entity Controlled by, Controlling or under common Control with that Party, whereby “Control” means (i) the direct or indirect ownership of more than 50% (fifty percent) of the equity interest in such corporation or business entity, or (ii) the ability in fact to control the management decisions of such corporation or business entity.
“Authorized User(s)” means Customer, its authorized Affiliates, and their respective employees, contractors or consultants solely to the extent providing services on behalf of Customer (or its Affiliates).
“Customer Content” means any data, text, applications, files, electronic documents, images, information or other materials including floor plans, spreadsheets, other facility management software and other asset inventory management software (including related data) that Customer or its Affiliates or Authorized Users (a) upload, import or input into the Software or provides to InMapz in the course of InMapz’s performance of the Software, Professional Services or Support by or on behalf of Customer or its Authorized Users or (b) create in connection with or through use of the Software, Professional Services or Support including adding equipment to maps including specifying the location of equipment on maps and identifying equipment specification-related information (e.g., model numbers).
“Documentation” means the InMapz user manual and any other technical documentation related to the Software or Professional Services made available to Customer by InMapz.
“Fees” mean fees as described on the Order Form or SOW.
“Intellectual Property Rights” means all intellectual property rights throughout the world, including: (a) copyrights, moral rights, design rights, database rights, data collections, and other sui generis rights; (b) Trade Secrets or other proprietary rights in confidential information or technical, regulatory and other information, designs, results, techniques, and other know-how; (c) trademarks, service marks, corporate names, trade names, Internet identifiers, trade dress, and other similar designations of source or origin together with the goodwill symbolized by any of the foregoing; (d) patents, disclosures of inventions (whether or not patentable), patent applications, reissues, reexaminations, utility model rights and design rights (registered or otherwise), and registered or other industrial property rights; and (e) applications, registrations, and renewals for, and all associated rights with respect to, any of the foregoing in any part of the world.
“Order Form(s)” means the InMapz-provided: (i) online registration or order form or click through agreement referencing the MSA and/or (ii) signed order form between the Parties providing a website link to or otherwise referencing the MSA. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Professional Services” means any services performed by InMapz relating to the Software such as set up, installation, activation, map creation, data processing, data upload, training (which shall under all circumstances be provided in InMapz’s sole discretion), configuration, integration, customization, and optimization.
“Representatives” means officers, directors, employees, contractors, vendors, consultants, advisors, attorneys, agents, Affiliates, successors, assigns and other representatives.
“Software” means the software applications and software-as-a-service services provided by InMapz and set out in the Order Form or which InMapz otherwise agrees to provide access to Customer and any related content, and software tools provided by InMapz.
“SOW” means any statement of work which is: (i) signed by both Parties and incorporates the MSA or (ii) referenced on an Order Form that incorporates the MSA.
“Support” means the technical support services made available by InMapz to Customer and used in accordance with the Agreement.
“Trade Secrets” means source code, code, software algorithms, specifications, models, formulas, samples, patterns, designs, plans, know-how, processes, questionnaires, methodologies, business methods, drawings, documents, innovations, technical information, data, business operations, current and prospective customer lists, financial information and projections, marketing and advertising plans, fee and pricing information, cost of services and materials and personnel information.
2. LICENSE GRANT AND RESTRICTIONS.
(a) Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, InMapz grants to Customer and its Affiliates a limited, non-sublicensable, non-transferable, non-exclusive, revocable right to access and use the Software and Documentation for Customer’s and its Affiliates’ internal business purposes during the subscription term stated in the applicable Order Form. Customer will not be provided with and shall have no right to any software code, and InMapz reserves the right to suspend access to the Software for scheduled maintenance or emergency maintenance. Customer shall be responsible for Authorized Users’ compliance with the Agreement.
(b) Customer and its Affiliates and Authorized Users shall not directly or indirectly: (1) provide access to the Software, Support or Documentation to any third party (except Authorized Users) or otherwise permit a third party (except Authorized Users) to use or benefit from the Software, Support or Documentation; (2) reverse engineer, decipher, decompile, disassemble, reconstruct, translate, otherwise attempt to discover, copy or modify the Software or any other InMapz Confidential Information, trade secrets, formulas, methodologies, processes or models, source code, software code, or underlying technical information; (3) use the Software or any other InMapz Confidential Information, trade secrets, formulas, methodologies, processes or models to provide services to third parties (e.g., as a service bureau) or distribute, sell, license, sublicense, rent, loan, lease, assign, or transfer the Software or any other InMapz Confidential Information to a third party; (4) use the Software or any other InMapz Confidential Information for any benchmarking purpose or in connection with the development of any software, product or service that is competitive with, or derivative of, a software, product or service of InMapz or its Affiliates; (5) use or export the Software or any other InMapz Confidential Information: (i) in breach of any applicable laws, regulations, embargoes, restrictive measures or the Documentation; or (ii) to any country for which the United States or any other government, at the time of export requires an export license or other governmental approval, without first obtaining such license or approval; (6) access, store, or transmit any viruses, spam, or any material that is unlawful, abusive, obscene, or harmful; (7) input any personally identifiable information or other personal data in the Software; or (8) use the Software or any other InMapz Confidential Information: (i) to try to gain unauthorized access to any service, device, data, account or network or (ii) in a manner that infringes Intellectual Property Rights. InMapz shall not be responsible for Customer’s or any of its Affiliates’ or Authorized Users’ use of third party software or systems accessed from the Software.
(c) Except to the extent caused by a breach of the Agreement by InMapz, Customer shall be solely responsible for (1) all activity occurring under Customer’s and its Affiliates’ user accounts; and (2) Customer Content including the accuracy and completeness of Customer Content and for the location of equipment on maps and specification-related information regarding any equipment (e.g., model numbers) and shall hold InMapz and its Representatives harmless and defend and indemnify them for all claims, losses, damages, liabilities, costs (including legal fees) and expenses arising out of or relating to Customer Content and the foregoing. Customer shall maintain the copyright notices that appear on any materials relating to the Software, Support, Professional Services and Documentation.
3. FEES AND PAYMENT.
Customer shall pay InMapz the Fees within thirty (30) days from the invoice date without offset or deduction. All payment obligations are non-cancelable and all amounts paid are non-refundable (except as expressly stated otherwise herein). All payments shall be made in US dollars in full and cleared funds without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law) within thirty (30) days after the applicable invoice date (“Payment Due Date”). All sums payable under the Agreement are exclusive of sales or other taxes, which Customer shall be responsible for. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, excluding taxes imposed on InMapz’s income. If payment has not occurred by the Payment Due Date, then without limiting any other right or remedy available to InMapz, a late fee (“Late Fee”) of 1.5% per month of the invoice amount shall apply. Prior to charging Late Fees, InMapz will contact Customer regarding the delinquency and verify receipt of the applicable invoice. Customer shall provide InMapz with complete and accurate billing and contact information.
4. LIMITED WARRANTY AND DISCLAIMERS.
(a) InMapz warrants that (1) the Software will substantially perform the functions set forth in the specifications, (2) Professional Services shall be provided in a workmanlike and professional manner pursuant to any applicable SOW, and (3) it shall use commercially reasonable measures to prevent viruses from being released in the Software. If Customer notifies InMapz in writing of any failure in the Software or Professional Services to materially conform to the warranties outlined above, InMapz shall, at its option and expense: (i) repair, (ii) replace or reperform, or (iii) if unable to repair, replace or reperform, terminate the Agreement or the applicable Order Form with respect to the non-conforming Software or Professional Services, and issue a pro rata refund of the Fees paid for the terminated Software or Professional Services. These remedies shall be conditioned on Customer providing information necessary to assist InMapz in resolving the nonconformance including a documented example of any nonconformance or sufficient information to enable InMapz to re-create the nonconformance. This Section 4(a) shall be Customer’s sole and exclusive remedy under the warranties.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THE AGREEMENT, INMAPZ: (A) PROVIDES THE SOFTWARE, SUPPORT, PROFESSIONAL SERVICES AND DOCUMENTATION SOLELY ON AN “AS IS”, “WHERE IS”AND “AS AVAILABLE” BASIS AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE; AND (C) DOES NOT WARRANT THAT THE SOFTWARE, SUPPORT, PROFESSIONAL SERVICES OR DOCUMENTATION ARE OR WILL BE ERROR-FREE OR MEET CUSTOMER’S OR ITS AFFILIATES OR AUTHORIZED USERS’ REQUIREMENTS. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF INMAPZ TO ANY THIRD PARTY.
(c) Neither InMapz nor any of its Representatives shall be responsible for any delays, delivery failures, or other loss or damage resulting from the transfer of data over the Internet or other communications networks and facilities which are not directly controlled by InMapz. Customer agrees that the Software, Support, Documentation and Professional Services may be subject to problems inherent in the use of such communications networks and facilities.
(d) High-Risk Disclaimer. The Software, Support, Professional Services and Documentation are not fault-tolerant and are not designed or intended for use in any environment requiring fail-safe performance including any application in which the failure of the Software, Support, Professional Services or Documentation could lead directly to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). INMAPZ SHALL NOT BE LIABLE FOR USE OF THE Software, Support, Professional Services or Documentation IN ANY ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR FOR HIGH-RISK ACTIVITIES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OR MALFUNCTION OF THE Software, Support, Professional Services or Documentation COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR PROPERTY DAMAGE. ANY SUCH USE OF THE Software, Support, Professional Services or Documentation IS SOLELY AT CUSTOMER’S OWN RISK EVEN IF INMAPZ KNOWS OF SUCH USE. INMAPZ EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR ANY AND ALL HIGH-RISK ACTIVITIES.
5. CONFIDENTIALITY.
“Confidential Information” means business information of a confidential or proprietary nature including Trade Secrets and other information of commercial value including pricing, software, software code and underlying technical or business information which relates to the Discloser that is disclosed or provided to Recipient by or on behalf of Discloser pursuant to the Agreement, provided, however, that Confidential Information shall not include information that (1) is or becomes a part of the public domain through no act or omission of the Recipient; (2) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (3) is lawfully disclosed to the Recipient by a third party without restriction on disclosure, any existing non-use or confidentiality obligation or breach of this Agreement; (4) is independently developed by the Recipient without use of or reference to any of the Discloser’s Confidential Information and without violating any of Recipient’s obligations under this Agreement. A Party or its Affiliates may receive (“Recipient”) Confidential Information of the other Party or its Affiliates (“Discloser”) and the Recipient shall keep all such Confidential Information confidential and protect it by using the highest degree of care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than a commercially reasonable degree of care. The Recipient shall not disclose Confidential Information to any person or entity other than Customer’s Authorized Users (or InMapz or its Representatives) who have a need to know such Confidential Information provided that the Recipient remains responsible for the confidentiality and non-use of the information pursuant to this Section 5. Neither Party shall use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under the Agreement. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations hereunder. This Section shall apply during the Term of this Agreement and for three (3) years after the Agreement’s termination, provided that, with respect to Confidential Information that is a Trade Secret, such rights and obligations will survive such termination perpetually until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Recipient or its Representatives provided that no termination shall relieve either Party from a prior breach.
6. INTELLECTUAL PROPERTY.
(a) InMapz or its third party licensors own all Intellectual Property Rights embodied in the Software, Documentation, Support and/or any Professional Services provided by InMapz under the Agreement including all modifications or derivatives thereof. No rights are granted to Customer other than as expressly set forth in the Agreement. InMapz does not convey any Intellectual Property Rights other than those expressly provided herein.
(b) InMapz shall be the sole owner of any newly-developed Intellectual Property Rights related in any way to the Software or Software code, Documentation, Support, or the Professional Services. The Customer hereby assigns to InMapz any of these newly-developed Intellectual Property Rights that result from Customer’s requests, feedback, or ideas (“Feedback”), regardless of whether such newly-developed Intellectual Property Rights result from Software-related services paid for by Customer. If InMapz creates custom templates for Customer in connection with Professional Services performed under the Agreement, Customer may not retain copies of such templates after any termination of the Agreement. Nothing contained in the Agreement shall prevent InMapz from independently developing its own Software or other content.
(c) Customer Content shall remain the property of Customer or its licensors. To the extent materials developed by InMapz in connection with the Agreement contain any Customer Content, InMapz shall not own the Customer Content therein, and InMapz shall have no right to use any part of Customer Content (except for Feedback, pursuant to Section 6(b)). Customer hereby grants to InMapz a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Content and perform all acts with respect to the Customer Content as may be necessary for InMapz to provide the Software, Professional Services or Support to Customer. Customer will ensure that Customer Content –and InMapz’s and Customer’s and any of its Affiliates’ and/or Authorized User’s use of Customer Content– will not violate any terms referenced in or incorporated into this Agreement or any applicable law.
7. AUDITS.
InMapz may conduct periodic remote audits for the sole purposes of verifying Customer’s (and its Authorized Users’ and Affiliates’) use of the Software in compliance with the Agreement.
8. CUSTOMER DATA BACKUP RESPONSIBILITIES;
Neither the Software, Support nor Professional Services replace the need for Customer to maintain regular data backups or redundant data archives. NEITHER INMAPZ NOR ANY OF ITS REPRESENTATIVES HAS ANY OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER CONTENT AND ALL OTHER CUSTOMER DATA.
9. INDEMNIFICATION.
(a) InMapz agrees to defend Customer and its Affiliates ( “Customer Indemnitees”) against any third party claim that Customer Indemnitee’s use of the Software, as made available by InMapz to Customer and used in accordance with the Agreement and the Documentation, directly infringes a third party’s Intellectual Property Rights (an “Infringement Claim”), and indemnify Customer Indemnitees from the resulting costs and damages finally awarded against Customer Indemnitees to such third party by a court of competent jurisdiction or agreed to by InMapz in a final, binding settlement provided that: (1) Customer Indemnitees promptly notify InMapz in writing of the Infringement Claim; (2) InMapz has sole control of the defense and all related settlement negotiations; (3) Customer Indemnitees provide InMapz with the information, assistance and authority to enable InMapz to perform its obligations under this Section 9; and (4) Customer Indemnitees make no admission of liability and do not compromise the ability of InMapz to defend the claim. Customer Indemnitees may not settle or compromise any Infringement Claim without the prior written consent of InMapz in its sole discretion.
(b) In any action based on an Infringement Claim, InMapz, at its sole option and expense, shall either: (1) procure the right for Customer to continue using the Software in accordance with the Agreement; (2) make modifications to or replace the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; or (3) terminate the right to use the infringing Software and refund to Customer the unused portion of any Software subscription fees prepaid by Customer and received by InMapz for such infringing Software. Neither InMapz nor any of its Representatives or Affiliates shall have any liability or obligations for an Infringement Claim pursuant to this Section 9 to the extent that it results from: (i) modifications to the Software made by a party other than InMapz or a party under the direct control of InMapz; (ii) the combination, operation or use of the Software with non-InMapz Software, products or materials; (iii) use of the Software outside the scope of the Agreement; (iv) InMapz’s use of any Customer Content, designs, instructions, specifications, or the like, provided, requested or directed by Customer Indemnitees, if any; or (v) use of third party software or, technology not embedded by InMapz into the Software. This Section 9 states Customer Indemnitees’ sole and exclusive remedies and InMapz’s and its Representatives’ and Affiliates’ entire liability with respect to claims subject to indemnification under this Section, including claims for infringement or violation of third party Intellectual Property Rights by the Software.
10. LIMITATION OF LIABILITY AND DAMAGES.
(a) EACH PARTY’S TOTAL AGGREGATE LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY, WITH RESPECT TO ALL SUBJECT MATTER RELATING TO THE AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO INMAPZ UNDER THE AGREEMENT IN THE TWELVE MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMIT.
(b) UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES) BE LIABLE FOR ANY: (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (2) LOSS OF REVENUES, SALES OR BUSINESS; (3) LOSS OF PROFITS; (4) LOSS, CORRUPTION OR INACCURACY OF DATA, SOFTWARE, IT SYSTEMS OR INFORMATION OR WORK STOPPAGE; OR (5) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING IN CONNECTION WITH THE AGREEMENT, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION (AND WHETHER (2) THROUGH (5) ARE DIRECT, INDIRECT, INCIDENTAL,CONSEQUENTIAL, COVER, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
11. TERM; TERMINATION; SUSPENSION.
(a) The Agreement shall continue for a period of twelve (12) months (“Initial Term”) or such other period indicated on the Order Form. Each Order Form shall automatically renew for an additional twelve (12) month term (each, a “Renewal Term,” together with the Initial Term, the “Term”) on InMapz’s then-current pricing and terms unless either Party provides notice of its intent not to renew at least thirty (30) days in advance of the end of the Initial Term or current Renewal Term. Any notice provided under this Section may be accomplished via email or electronically submitted invoice or notice.
(b) Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Agreement that has not been cured (if curable) within thirty (30) days of the effective date of such written notice requiring the remedy of such breach or if either Party (1) becomes insolvent; (2) elects to dissolve and wind-up its business; (3) makes a general assignment for the benefit of creditors; or (4) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property. The Agreement will also terminate automatically upon the termination of all Order Forms unless automatically renewed pursuant to Section 11(a).
(c) Upon termination of the Agreement by any means, the rights granted under Section 2 will terminate and (1) Customer shall promptly, permanently destroy any and all InMapz Confidential Information, and, upon InMapz’s request, have an officer of Customer confirm the same in writing; (2) Customer may export a copy of the Customer Content (stored in the Software at the time of termination) in a structured, commonly used and machine-readable format within thirty (30) days after such expiration or termination and InMapz may delete all Customer Content remaining in the Software after such time has passed; (3) InMapz shall promptly destroy any and all Customer Confidential Information and an officer of InMapz shall confirm the same to Customer in writing on Customer’s request; otherwise, the terms of the Agreement will remain in effect with respect to such Confidential Information; and (4) InMapz will remove access to the Software.
(d) Without limiting the foregoing, InMapz may upon ten (10) days’ prior written notice (except in the event of an emergency under subsection (2) below) suspend or limit Customer’s access to or use of the Software without liability if (1) Customer’s account is past due, or (2) Customer’s use of the Software breaches Section 2 or impairs performance of the Software or InMapz systems or use of the Software by other InMapz customers provided that InMapz will promptly end such suspension when Customer cures the foregoing (without prejudice to InMapz’s other remedies in respect of the applicable breach).
(e) Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
(f) Sections 1, 2(b), 2(c), 3, 4(b), 5, 6, 8, 10, 11, 12, 13, 16, and 17 will survive the termination of the Agreement.
12. NOTICE.
All notices under the Agreement shall be deemed properly given and effective (a) when personally delivered; (b) when deposited in the United States certified mail, registered mail, postage prepaid or return receipt requested; or (c) when deposited with an internationally recognized overnight delivery service with all fees and charges prepaid and addressed in each such case as set out in the Order Form. When any notice under the Agreement is sent to InMapz, a copy shall be sent to Legal@InMapz.com.
13. GOVERNING LAW; VENUE; SEVERABILITY.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without regard for conflict of laws principles. Any legal claim, suit, action, dispute or proceeding (“Action”) arising out of or related to this Agreement or the rights granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Irvine, CA, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any Action. In any Action to enforce the Agreement, the prevailing Party will be entitled to reasonable costs and attorneys’ fees actually incurred. No Action may be brought by either Party against the other Party arising in any way out of the Agreement after one (1) year from the date on which the cause of action arose (and regardless of the nature of the claim or form of action) provided, however, the foregoing limitation shall not apply to any Action related to the infringement of a Party’s Intellectual Property Rights.
(b) The Agreement and all related documents shall be in the English language and all Actions arising under the Agreement shall be conducted and resolved in the English language.
14. NONASSIGNABILITY.
Except for either Party’s right to assign this Agreement in the event of a merger, acquisition, or other change of control transaction upon prior written notice to the other Party, neither the rights nor the obligations arising under the Agreement are assignable or transferable by either Party without the other Party’s prior written consent (which consent will not be unreasonably withheld), and any such attempted assignment or transfer shall be void and without effect.
15. PUBLICITY. Customer consents to InMapz’s use of Customer’s name and logo for public identification as a customer in InMapz’s customer lists, websites, marketing materials and press releases (“Marketing Collateral”). Upon request, Customer consents to participating in a case study regarding its experiences with InMapz’s Services (“Case Study”) and inclusion of and reference to the Case Study in Marketing Collateral.
16. ENTIRE AGREEMENT; MODIFICATIONS; WAIVERS; SEVERABILITY; CONSTRUCTION; THIRD PARTY RIGHTS.
(a) The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and the Software, Support, Professional Services and Documentation and supersedes all prior or contemporaneous proposals, communications and understandings, oral or written (including any confidentiality agreements) relating to that subject matter.
(b) Except as expressly provided in the Agreement, any amendments or modifications of the Agreement must be in writing and signed by duly authorized representatives of both Parties.
(c) Any waiver of any provision of the Agreement must be in writing and shall not be deemed a waiver of any other provision. Waiver by a Party of a breach of any provision of the Agreement by the other Party will not operate as a waiver of any other or subsequent breach by such breaching Party.
(d) Each provision of the Agreement shall be considered severable such that if any provision conflicts with any existing or future law, or is held to be illegal, unenforceable or invalid by a court, the other provisions of the Agreement shall be limited or modified to the minimum extent necessary to make it valid, legal, and enforceable and so that the Agreement shall otherwise remain in effect.
(e) For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation” and (b) the word “or” is not exclusive. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in the Agreement. If there is any conflict or inconsistency between the Terms and any Order Form, the Order Form shall prevail to the extent of any such conflict or inconsistency. Any additional or different terms or conditions proposed by Customer are hereby expressly excluded.
(f) The Agreement does not confer any right or benefit on any person who is not a Party to it and no one other than a Party to the Agreement, their successors and permitted assignees shall have any right to enforce any of the terms of the Agreement.
17. GENERAL.
(a) Each Party shall be responsible for its own compliance with applicable laws. Customer shall be responsible for ensuring that any information provided to InMapz including in connection with the Professional Services or Support is accurate and complete.
(b) A delay by either Party in performing its obligations will not be a breach of the Agreement if caused by fire, flood, pandemic, act of God or other event beyond the reasonable control of such Party. The affected Party will notify the other Party of such event and resume performance as soon as possible.
(c) The Agreement may be executed in any number of counterparts, each of which is an original, but all the counterparts together shall constitute the same document. Delivery of an executed counterpart of a signature page to the Agreement by e-mail or other electronically delivered signatures of the Parties shall be as effective as delivery of an original, manually executed counterpart of the Agreement.
(d) The Parties are independent contractors. Nothing in the Agreement is intended to create a joint venture, partnership, agency or employment relationship between the Parties.