goDeskless MSA (Master Software and Services Agreement)
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into by and between goDeskless INC. (the “Company”) and the Customer named in the related Proposal, Statement of Work and/or Order Form, which is incorporated herein by reference and made a part hereof (the “Order”). The Order shall include any subsequent Change Orders requested by the Customer and shall apply to all Services ordered by the Customer.
goDeskless Software (defined below) and services provided by goDeskless hereunder shall be governed by the terms of this Agreement. The goDeskless Software licensed by Customer will be as specified in Software Schedules attached hereto in seriatum at Exhibit A, and each such Software Schedule upon execution by the parties (each, a “Software Schedule”), will be deemed an attachment to, and incorporated into, this Agreement. From time to time, the parties may also enter into statements of work in connection with a particular Software Schedule and each such statement of work, upon execution by the parties (each, an “SOW” or “Statement of Work”), will be deemed an attachment to, and incorporated into, this Agreement. In the event of any conflict between the terms of this Agreement, any Software Schedule, and/or any Statement of Work, the order of precedence will be as follows in descending order: the terms in (1) this Agreement, (2) the Software Schedule, but solely with respect to the subject matter of that Software Schedule, and (3) the Statement of Work, but solely with respect to the subject matter of that Statement of Work.
TERMS & CONDITIONS
- “Affiliate” means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
- “goDeskless Software” means (a) the SaaS product described in a Software Schedule executed hereunder by the parties (b) any and all code and application programming interfaces developed by goDeskless that enables the integration of such SaaS product into the web pages on any Customer Application, and (c) any and all modified, updated, or enhanced versions of such SaaS product that goDeskless may provide Customer under this Agreement.
- “Authorized Users” means Customer Users and End Users.
- “Customer Applications” means the Customer Mobile Application and Customer Management Software.
- “Customer Content” means text, music, sound, images, video, graphics, logos, trademarks, and all other content provided by or on behalf of Customer to goDeskless for customizing the user interface of the goDeskless Software for Customer as described in the applicable Software Schedule and this Agreement.
- “Customer Management Software” means customer relationship management software application(s) owned by or licensed by a third party to Customer identified in a given Software Schedule for which Customer has purchased a license hereunder to the goDeskless Software specified in that Software Schedule, and any other customer relationship management software applications owned by or licensed by a third party to Customer and added to such Software Schedule by written agreement of the parties.
- “Customer Mobile Application” means mobile application(s) owned by or licensed by a third party to Customer as identified in a given Software Schedule for which Customer has purchased a license hereunder to the goDeskless Software specified in that Software Schedule, and any other mobile applications owned by or licensed by a third party to Customer and added to such Software Schedule by written agreement of the parties.
- “Customer Users” means Customer’s Affiliates, employees or contractors who are authorized to use the goDeskless Software, solely for Customer’s internal business purposes, subject to applicable Usage Permissions and otherwise in compliance with this Agreement.
- “Customer Website” means the website(s) or webpage(s) owned or operated by Customer currently located at the URL(s) specified in a given Software Schedule for which website(s) or webpage(s) Customer has purchased a license hereunder to the goDeskless Software specified in that Software Schedule, and any other website(s) or webpage(s) owned or operated by Customer and added to such Software Schedule by written agreement of the parties.
- “Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that goDeskless makes available to Customer in hard copy or electronic form for the goDeskless Software, and any modified, updated, or enhanced versions of such documentation.
- “End User” means Customer’s end user customers who engage with Customer Applications.
- “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
- “Professional Services” has the meaning given to such term in Section 3.2.
- “Subscription Fee ”means the fees identified as the subscription fee in a given Software Schedule for the goDeskless Software specified therein.
- “Support” has the meaning given to such term in Section 3.3.
- “Usage Permissions” means the scope of use of the goDeskless Software specified in the Documentation, Software Schedule, or in writing by goDeskless for Authorized Users.
- License Grant; Restrictions; Users
- License Grant Subject to the terms and conditions of this Agreement, goDeskless hereby grants to Customer a non-exclusive, non-transferable, limited license, solely during the term of this Agreement, to: (a) permit Customer Users to access and use the goDeskless Software specified in a Software Schedule, over the Internet, solely for Customer’s own business purposes in connection with the Customer Websites and Customer Applications and in accordance with Usage Permissions specified by goDeskless for Customer Users; (b) permit End Users to access and use the goDeskless Software specified in a Software Schedule, over the Internet, through Customer Mobile Applications and in accordance with Usage Permissions specified by goDeskless for End Users; and (c) reproduce and use a reasonable number of copies of the applicable Documentation in support of the exercise of the licenses granted in clause (a) and (b) above.
- Restrictions Customer acknowledges that the goDeskless Software and Documentation embodies, contains, and constitutes valuable trade secrets of goDeskless. Accordingly, Customer agrees that it will not, and it will not permit any Authorized User or third party to: (a) modify, adapt, translate or create derivative works based on the goDeskless Software or Documentation made available hereunder; or (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the goDeskless Software; or (c) distribute, license, sublicense, assign, transfer or otherwise make available to any third party any goDeskless Software or Documentation, except to the extent expressly permitted in Section 2.1. goDeskless reserves all rights and licenses not expressly granted to Customer in Section 2.1 and no implied license is granted by goDeskless. Customer agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of goDeskless or its suppliers on or within the goDeskless Software or Documentation. Customer agrees that it shall not permit any person other than Authorized Users to access and use the goDeskless Software and Customer acknowledges and agrees that any non-compliance by any Authorized User with any of the requirements above will be deemed a breach by Customer of this Agreement.
- goDeskless SaaS Service Subject to the terms and conditions of this Agreement (including the payment of applicable fees), goDeskless will provide Customer and Authorized Users, during the term of this Agreement, access, over the internet, to the goDeskless Software specified in a Software Schedule licensed by Customer.
- Professional Services Subject to the terms and conditions of this Agreement (including the payment of applicable fees), goDeskless will provide Customer the implementation and other professional services specified in a Software Schedule or a Statement of Work (collectively, the “Professional Services” which, for the avoidance of doubt, excludes Support). The scope, timeline and tasks of the parties with respect to the Professional Services shall be as specified in the Software Schedule or Statement of Work, as applicable. Unless the fees for Professional Services specified in any Software Schedule or Statement of Work are set forth in that Software Schedule or Statement of Work, as applicable, the fees payable to goDeskless for Professional Services shall be based on goDeskless’s then-current rates for such Professional Services.
- Support ServicesSubject to the terms and conditions of this Agreement (including the payment of applicable fees), goDeskless will provide Customer technical support for the then-current release and the immediately prior release of the goDeskless Software licensed by Customer in accordance with goDeskless’s then-current terms and conditions for such support (“Support”). goDeskless will make available to Customer updates and upgrades for such goDeskless Software on such terms as goDeskless generally makes available such updates and upgrades to its other customers.
Notwithstanding anything in this Agreement to the contrary, goDeskless will have no responsibility or liability of any kind under this Agreement, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by goDeskless; (b) nonconformities resulting from Customer’s, its Authorized Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the goDeskless Software, or other services provided hereunder by goDeskless; (c) modification, amendment, revision, or change to the goDeskless Software by any person other than goDeskless; or (d) any other factor outside of goDeskless reasonable control.
- Customer Assistance & Responsibilities. Customer will assist goDeskless in the performance of services as specified in a Software Schedule and/or Statement of Work. Without limiting the foregoing, Customer will provide goDeskless Customer branding and other Customer Content for incorporation in the user interface of the goDeskless Software. Customer shall provide all Customer Content within a reasonable time period designated by goDeskless in a format specified by goDeskless. Customer hereby grants to goDeskless , during the term of this Agreement, a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Customer’s intellectual property and proprietary rights, to reproduce, modify, incorporate, perform and otherwise use the Customer Content as reasonably necessary for goDeskless to provide Customer the goDeskless Software and other services hereunder. Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to goDeskless in and to such Customer Content. In connection with goDeskless’s provision of the Professional Services, Customer shall: (i) reasonably cooperate with goDeskless in all matters relating to the implementation services of goDeskless products; (ii) in a timely manner, provide all Customer Content reasonably necessary for goDeskless to complete such implementation services; (iii) respond promptly to any goDeskless requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for goDeskless to perform the implementation services in accordance with the applicable Statement of Work or Order Form; (iv) provide personnel who are adequately qualified, experienced, skilled and knowledgeable to coordinate with goDeskless on its provision of the implementation services. Customer understands and agrees that goDeskless’s implementation, delivery timelines, and performance is dependent on Customer’s timely and effective satisfaction of Customer Responsibilities.
- Competitive Products During the term of this Agreement, Customer agrees that it shall not purchase, license, use or enable on or through any Customer Application, any products or services with functionality substantially similar to the goDeskless Software.
- Indemnification Customer will defend at its own expense any claim or action against goDeskless , or its Affiliates, or their respective officers, directors, employees or contractors (each an “goDeskless Indemnified Party”) brought by a third party or governmental entity, and will indemnify and hold harmless each goDeskless Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such goDeskless Indemnified Party in any such claim or action, to the extent that the action is based on: (a) allegations that the Customer Applications, Customer Content, or Customer’s activities in connection with the services hereunder, violate any applicable law (including the CAN-SPAM Act) or infringe or misappropriate the Intellectual Property Rights of any third party; (b) User Data or a violation of any applicable privacy law, rule or regulation by Customer; (c) Authorized User claims, or (d) Excluded Claims (defined in Section 11 below). The foregoing obligations are conditioned on goDeskless notifying Customer promptly in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of goDeskless or any goDeskless Indemnified Party or requires goDeskless or any goDeskless Indemnified Party to contribute to the settlement without goDeskless’s prior written consent. goDeskless and any goDeskless Indemnified Party may participate and retain its own counsel at its own expense.
- By goDeskless goDeskless and its suppliers retain all right, title and interest in and to all Intellectual Property Rights in the goDeskless Software, Documentation, and all other materials provided or made available to Customer in connection with the services provided by goDeskless , subject to any Intellectual Property Rights in Customer Content, and any and all modifications, updates, and enhancements to the foregoing items. In addition, Customer hereby licenses Feedback and Blind Data to goDeskless on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for goDeskless to use and exploit in any manner and for any purpose. “Feedback” means any and all suggestions and feedback provided to goDeskless by Customer or Authorized Users regarding the functioning, features, and other characteristics of the goDeskless Software, Documentation, or other materials or services provided or made available by goDeskless hereunder, excluding suggestions and feedback on Customer Content. “Blind Data” means any and all aggregated non-personally identifiable data or information resulting from Customer’s or its Authorized Users’ use of the goDeskless Software or other services provided by goDeskless.
- By Customer Customer retains all right, title and interest, including all Intellectual Property Rights, in and to User Data and Customer Content.
Customer and goDeskless each may refer generally to the existence of this Agreement but may only use the other’s name in press releases, on web sites, and other promotional material with the written consent of the other party, and will not reveal any specific terms of this Agreement or the other party’s Confidential Information except as permitted herein. For the avoidance of doubt, the execution of this Agreement shall be deemed written approval in accordance with the obligations herein solely as it pertains to goDeskless’s ability to display Customer’s logo on its website and marketing materials.
8.Fees and Payment
- Fees Customer shall pay to goDeskless the fees specified in the Software Schedules and Statements of Work, as the case may be, in accordance with the payment terms specified therein. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on goDeskless ’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the goDeskless Software, or performance of any services bygoDeskless.
- Terms of Payment All payments made to goDeskless shall be in U.S. Dollars. Except as otherwise set forth in the applicable Software Schedule or Statement of Work, all fees and other charges are due and payable to goDeskless within thirty (30) days after the date of goDeskless’s invoice. Customer acknowledges and agrees that it will be subject to the Subscription Fee even if the goDeskless Software is not launched or fully launched in a production environment within sixty (60) days following the date of execution of the initial Statement of Work, if such failure is due to Customer’s failure to meet its obligations under Section 5.1 or as set forth in the initial Statement of Work. Customer agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts more than thirty (30) days past due, and to pay all reasonable costs, including attorneys’ fees and costs, associated with goDeskless’s collection of past due amounts. In addition, goDeskless reserves the right to suspend any or all services (including the goDeskless Software) hereunder if payments are more than thirty (30) days past due.
- Records At all times during the term of this Agreement, and for at least three (3) years after the termination of this Agreement, Customer will maintain at its principal place of business complete and accurate records with respect to Customer’s activities pursuant to this Agreement, including a complete list of all copies of the goDeskless Software and Documentation made or used by or on behalf of Customer, a complete list of the Authorized Users, and all other information needed for verification of amounts to be paid to goDeskless under this Agreement and Customer’s compliance with this Agreement.
- Audit Rights goDeskless will have the right, during normal business hours and upon at least ten (10) business days’ prior notice, to inspect, or have an independent audit firm selected by goDeskless inspect, Customer’s records relating to its administration of the goDeskless Software under this Agreement in order to verify that Customer has paid goDeskless the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement. The audit will be conducted at goDeskless ’s expense, unless the audit reveals that Customer has underpaid the amounts owed to goDeskless by more than five percent (5%) or failed in some other material respect to comply with the terms of this Agreement, in which case Customer will reimburse goDeskless for all reasonable costs and expenses incurred by goDeskless in connection with such audit. Customer will promptly pay goDeskless for any amounts shown by such audit to be due and owing to goDeskless. Such audits will be conducted no more than once in any period of twelve (12) consecutive months. This right will survive termination of this Agreement for three (3) years.
9.Term and Termination
- Term The term of this Agreement shall commence on the Effective Date and continue for a period of two (2) years after the execution of Software Schedule #1. Thereafter this Agreement may be renewed by mutual written agreement of the parties for a period equal to the Initial Term.
- Termination for Cause Either party may terminate this Agreement for material breach by the other party that remains uncured thirty (30) days after delivery of written notice to the breaching party describing such breach in reasonable detail. The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or under applicable law.
- Termination for Insolvency This Agreement may be terminated by either party effective immediately upon written notice to the other party, if the other party takes any corporate action to dissolve, liquidate or wind-up its business, makes a general assignment for the benefit of its creditors, or proceedings or any case are commenced in any court of competent jurisdiction by or against such party seeking: (a) such party’s reorganization, liquidation, dissolution, arrangement or winding-up, or the composition or readjustment of its debts, (b) the appointment of a receiver or trustee for or over such party’s property, or (c) similar relief in respect of such party under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debt, and such proceedings or case will continue undismissed, or an order with respect to the foregoing will be entered and continue unstayed, for a period of more than thirty (30) days.
- Effects of Termination Upon expiration or termination of this Agreement or any given Software Schedule for any reason, Customer shall cease (and require all Authorized Users to cease) using, and destroy, any and all information or materials supplied by goDeskless related to that Software Schedule, including any related goDeskless Software and Documentation provided by goDeskless , and all copies thereof in Customer’s possession or control. Upon expiration or termination of this Agreement for any reason, all fees due goDeskless under all Software Schedules and Statements of Work, shall be immediately due and payable, provided that if Customer terminates this Agreement pursuant to Section 9.2, goDeskless will refund to Customer any Subscription Fees paid in advance by Customer for any unused portion of the term of the Agreement for which such payment was made. If Customer terminates the Agreement (or any specific Software Schedule) for any reason other than in accordance with Sections 9.2 or 9.3, the Subscription Fees for the entire term of this Agreement shall be immediately due and payable. The expiration or termination of any Software Schedule shall not affect any other Software Schedule hereunder unless this Agreement expires or is terminated in whole. The following Sections will survive expiration or termination of this Agreement or any Software Schedule hereunder for any reason: 1, 2.2, 4, 5.4, 6, 8, 9.4, 10 through 13 (inclusive), 14 (subject to the terms thereof), and 15 through 18 (inclusive).
- “Confidential Information” means, with respect to (a) goDeskless: (i) the goDeskless Software, Documentation, and Feedback, (ii) the fees, (iii) all proprietary and non-public information regarding goDeskless ’s products, services, and business, and (iii) all materials and information disclosed under this Agreement that are marked “confidential” by goDeskless or that Customer knows or should have known, under the circumstances, are considered confidential by goDeskless ; and (b) Customer: (i) User Data and (ii) all materials and information disclosed under this Agreement that are marked “confidential” by Customer or that goDeskless knows or should have known, under the circumstances, are considered confidential by Customer. Customer Content and any other information published to the Customer Website(s) or authorized by Customer for publication on the user interface of the goDeskless Software will not be treated as confidential information.
- Protection Each party receiving (the “Receiving Party”) Confidential Information of the other party (the “Disclosing Party”) will: (a) not disclose to any third party or cause to be disclosed any of the Disclosing Party’s Confidential Information unless authorized in writing by the Disclosing Party; (b) refrain from using the Disclosing Party’s Confidential Information except to the extent authorized under this Agreement; and (c) preserve and protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care the Receiving Party uses to protect its own Confidential Information, but in no event less than reasonable care.
- Exceptions Confidential Information will not include information that is: (a) publicly available through no fault of the Receiving Party; (b) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party and without confidentiality restrictions; (c) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (d) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
- Required DisclosureThe Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under Section 10.2 to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Return The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control within a reasonable period of time following the written request of the Disclosing Party. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 10.5.
- Confidentiality of Agreement Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except: (a) as required by applicable law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality).
goDeskless will defend at its own expense any claim or action against Customer or its officers, directors, or employees (each a “Customer Indemnified Party”) brought by a third party to the extent that the action is based upon a claim that the goDeskless Software infringes any copyrights or misappropriates any trade secrets of such third party, and goDeskless will pay those costs (including reasonable attorneys’ fees) and damages finally awarded against Customer Indemnified Parties in any such action that are specifically attributable to such claim or those costs (including reasonable attorneys’ fees) and damages agreed to by goDeskless in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying goDeskless promptly in writing of such claim, giving goDeskless sole control of the defense thereof and any related settlement negotiations, and at goDeskless ’s reasonable request and expense, cooperating and assisting in such defense. If the goDeskless Software becomes, or in goDeskless’s opinion is likely to become, the subject of an infringement claim, goDeskless may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed hereunder; (b) replace or modify the goDeskless Software so that it becomes non-infringing; or (c) refund to Customer any advance unused portion of the Subscription Fees paid by Customer under the Software Schedule that relates to the infringing goDeskless Software, whereupon goDeskless may terminate that Software Schedule upon written notice to Customer. Notwithstanding the foregoing, goDeskless will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim (each, an “Excluded Claim”): (i) based upon the use of a superseded release of the goDeskless Software, if the claim would have been avoided by the use of the current release, (ii) based upon any modification of the goDeskless Software by any person other than goDeskless , (iii) based upon the use, operation, or combination of the goDeskless Software with software programs, data, equipment, materials or business processes not provided by goDeskless, or (iv) based upon the Customer Content, Customer Applications, or User Data. This Section states goDeskless’s entire liability and Customer’s sole and exclusive remedy for infringement and misappropriation claims and actions. Customer and any Customer Indemnified Party may participate and retain its own counsel at its own expense.
MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THIS AGREEMENT OR THE goDeskless SOFTWARE, ANY SERVICES PROVIDED BY goDeskless , THE DOCUMENTATION OR ANY OTHER MATERIALS PROVIDED BY goDeskless , INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. goDeskless DOES NOT WARRANT THAT THE goDeskless SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF goDeskless’s SUPPLIERS.
13.Mutual Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF THEIR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE PRODUCTS OR SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES FOR THE PRODUCTS OR SERVICE(S) TO WHICH THE CLAIM RELATES; OR (B) THE SUBSCRIPTION CHARGES PAID BY CUSTOMER TO GODESKLESS, FOR THE PRODUCTS OR SERVICE(S) TO WHICH THE CLAIM RELATES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT TO PROVIDE EITHER PARTY WITH THE RIGHTS TO ACCESS AND USE THE PRODUCTS AS WELL AS SERVICE(S) IN ACCORDANCE WITH SECTION 2, BOTH PARTIES HAVE LIMITED THEIR POTENTIAL LIABILITY AND ALLOCATED RISKS BASED ON THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THEY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EITHER PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE EITHER PARTY FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
Neither party shall be responsible for any delay in its performance due to labor disputes, shortage of materials, fire, earthquake, flood, telecommunications failure, or any other cause beyond its reasonable control, except payments by Customer to goDeskless that are due pursuant to the terms of the Agreement.
Any notice or other communication required or permitted under this Agreement shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five (5) business days after deposit in the United States first class mail, by registered or certified mail, postage prepaid, addressed to the party’s address set forth above or at such other address as each party may designate by ten (10) business days’ advance written notice to the other party in accordance with this Section.
Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to a third party without the written consent of goDeskless , except that Customer may, without such consent, assign or transfer this Agreement, in whole, pursuant to a transfer of all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void. goDeskless may freely assign or transfer this Agreement hereunder without Customer’s consent
Any waiver, amendment or modification of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. Each party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such party’s obligations have been duly authorized and that this Agreement is a valid and legal agreement binding on the party and enforceable according to its terms. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, excluding those laws that direct the application of the laws of another jurisdiction and including its statute of limitations. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors. goDeskless may delegate the performance of any services hereunder to its Affiliates and contractors. Nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between goDeskless and Customer. This Agreement, including the Software Schedules and Statements of Work attached hereto, constitute the entire agreement between the parties regarding this subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”