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TERMS & CONDITIONS
By clicking “I Agree” or using the Services (as defined below), you are agreeing on behalf of the entity to which access to the Services has been granted (“Company”) that Company will be bound by and is becoming a party to this Master Services Agreement (“Agreement”) and that you have the authority to bind Company. This Agreement is made by and between Company and ExExpense a New Jersey corporation with a place of business at 88 E Main Street, #300, Mendham, NJ 07945 (“ExExpense”). The Agreement governs Company’s use of the Services provided by ExExpense, Inc. and their technology product called ExExpense (“ExExpense”). If you do not accept this Agreement or do not have the authority to bind Company, do not click “I Agree” and do not use the Services.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Company Data” means all electronic data or information submitted by Company to the Services.
“Malicious Code” means viruses, worms, time bombs, malware, spyware, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-ExExpense Applications” means online applications and offline software products that are provided by entities or individuals other than ExExpense and are clearly identified as such, and that interoperate with the Services.
“Services” means the products and services that are made available by ExExpense online via the Company login link at ExExpensecrm.com and/or other web pages designated by ExExpense, including associated offline components, as described in valid and current documentation provided by ExExpense.
“Users” means individuals who are authorized by Company to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied login credentials by Company (or by ExExpense at Company’s request). Users may include but are not limited to employees, consultants, contractors and agents of Company, and third parties with which Company transacts business.
2.1 Provision of Services. ExExpense shall make the Services available to Company pursuant to this Agreement. Company agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by ExExpense regarding future functionality or features.
2.2 User Subscriptions and Pricing. The Services are purchased as User subscriptions. Prior to the commencement of Services, Company shall specify a number of User subscriptions for purchase and ExExpense shall determine a price per subscription based on the number of User subscriptions specified by Company. ExExpense may increase the price per User subscription in accordance with Section 4 below. Company shall be assessed a monthly fee that is determined based on the specified number of subscriptions and the price per subscription. Company may terminate User subscriptions or add additional User subscriptions. A credit or surcharge shall be determined for each User subscription terminated or added, respectively, based on the price per User subscription and the number of days remaining in the calendar month at the time the User subscription is terminated or added. Company’s monthly fee shall be adjusted by the total of the credits and surcharges determined for User subscriptions terminated and added, respectively, during the immediately preceding calendar month. A User subscription is for a designated User only and cannot be shared or used by more than one User, but may be reassigned to a new User replacing a former User who no longer requires ongoing use of the Services. The Services may be accessed by no more than the number of Users for whom Company has purchased User subscriptions.
2.3 ExExpense Responsibilities. ExExpense shall: (i) provide ExExpense basic support for the Services to Company at no additional charge, and/or upgraded support if purchased, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which ExExpense shall give at least 8 hours notice via the Services and which ExExpense shall schedule to the extent practicable during weekend hours), or (b) any unavailability caused by circumstances beyond ExExpense’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ExExpense employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.
2.4 ExExpense Protection of Company Data. ExExpense shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards designed for protection of the security, confidentiality and integrity of Company Data. ExExpense shall not (a) modify Company Data, (b) disclose Company Data except as compelled by law in accordance with Section 6.3 below or as expressly permitted in writing by Company, or (c) access Company Data except to provide the Services and prevent or address service or technical problems, or at Company's request in connection with Company support matters.
2.5 Company Responsibilities. Company shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Company Data and for the means by which it acquired Company Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify ExExpense promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with valid and current documentation and directions provided by ExExpense and all applicable laws and government regulations. Company shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
2.6 Login Credentials. One set of login credentials will be assigned to one User subscription. A set of login credentials for a User subscription will include at least a username and a password. A User may not share login credentials with any other User. A set of login credentials may only be used in connection with the User subscription to which it was assigned. Login credentials shall be the exclusive property of ExExpense. Generation of login credentials or provision of login credentials by ExExpense to Company does not convey upon Company any right, title, or interest in the login credentials.
3. NON-EXEXPENSE PROVIDERS
3.1 Acquisition of Non-ExExpense Products and Services. ExExpense or third parties may from time to time make available to Company third-party products or services, including but not limited to Non-ExExpense Applications and implementation, customization and other consulting services. Any acquisition by Company of such non-ExExpense products or services, and any exchange of data between Company and any non-ExExpense provider, is solely between Company and the applicable non-ExExpense provider. ExExpense does not warrant or support non-ExExpense products or services, whether or not they are designated by ExExpense as “certified” or otherwise. Subject to Section 3.3 below, no purchase of non-ExExpense products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
3.2 Non-ExExpense Applications and Company Data. If Company installs or enables Non-ExExpense Applications for use with the Services, Company acknowledges that ExExpense may allow providers of those Non-ExExpense Applications to access Company Data as required for the interoperation and support of such Non-ExExpense Applications with the Services. ExExpense shall not be responsible for any disclosure, modification or deletion of Company Data resulting from any such access by Non-ExExpense Application providers. The Services shall allow Company to restrict such access by restricting Users from installing or enabling such Non-ExExpense Applications for use with the Services.
3.3 Integration with Non-ExExpense Applications. The Services may contain features designed to interoperate with Non-ExExpense Applications (e.g., Google, Facebook or Twitter applications). To use such features, Company may be required to obtain access to such Non-ExExpense Applications from their providers. If the provider of any such Non-ExExpense Application ceases to make the Non-ExExpense Application available for interoperation with the corresponding Service features on reasonable terms, ExExpense may cease providing such Service features without entitling Company to any refund, credit, or other compensation.
4. FEES AND PAYMENT
4.1 Fees. Company shall pay all fees assessed by ExExpense. Except as otherwise specified herein, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable, and (iii) fees paid are non-refundable. User subscription fees are based on calendar months. Fees for User subscriptions added in the middle of a calendar month will be assessed as described in Section 2 above. The fees for Services provided to Company during a calendar month will be assessed in advance on the first day of the calendar month. If the Services are commenced in the middle of a calendar month, the fees for Services provided to Company during the remainder of the calendar month will be assessed in advance on the day Services commence. The fees will be determined based on the price per subscription and the number of active User subscriptions held by Company as of the day the fees are assessed. If Services are commenced in the middle of a calendar month, the fees for the calendar month will be prorated based on the number of days remaining in the calendar month.
4.2 Statements and Payment. Company shall provide a valid credit card number to ExExpense. A statement will be generated on the first day of each calendar month. The statement shall recite fees assessed for the current calendar month and any outstanding balances accrued by Company. Except as otherwise specified in the statement, all fees and outstanding balances recited in the statement will be charged to the credit card number provided by Company ten (10) days after the statement is generated. Company is responsible for providing complete and accurate billing and contact information to ExExpense and notifying ExExpense of any changes to such information. At ExExpense’s discretion, a penalty fee of $25 may be assessed if the credit card number provided by Company is declined by the issuing bank or financial institution for any reason.
4.3 Overdue Charges. If any monthly fees assessed hereunder are not received by ExExpense by the last day of the calendar month during which they were assessed, then at ExExpense’s discretion, (a) such fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) ExExpense may condition future subscription renewals on payment terms shorter than those specified in Section 4.2 above.
4.4 Suspension of Service. If any charge owing by Company is 30 days or more overdue, ExExpense may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full, provided ExExpense has given Company 10 or more days’ prior notice that its account is overdue in accordance with Section 11.5 below. If the credit card number provided by Company is declined by the issuing bank or financial institution in two consecutive months, ExExpense may, at its discretion, suspend the Services until Company provides a valid credit card number and all fees and outstanding balances are paid in full.
4.5 Payment Disputes. ExExpense shall not exercise its rights under Section 4.3 or Section 4.4 above if Company is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6 Taxes. Unless otherwise stated, ExExpense's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Company is responsible for paying all Taxes associated with its purchases hereunder. If ExExpense has the legal obligation to pay or collect Taxes for which Company is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Company, unless Company provides ExExpense with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ExExpense is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights in the Services. Subject to the limited rights expressly granted hereunder, ExExpense reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Company hereunder other than as expressly set forth herein.
5.2 Restrictions. Company shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivative works based on the Services except as permitted herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Company's own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, (v) access the Services for the purpose of testing or benchmarking any products or services, (vi) access the Services for the purpose of comparing the Services with any competing product or service, (vii) access the Services for the purpose of generating or transmitting spam, (viii) upload any data into the Services that is not related to the intended purpose of the Services, or (ix) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. Company has retained the Services only for their intended purpose and shall not access the Services in any manner that is not within the scope of the intended purpose.
5.3 Company Applications and Code. If Company, a third party acting on Company’s behalf, or a User creates applications or program code using the Services, Company authorizes ExExpense to host, copy, transmit, display and adapt such applications and program code, solely as necessary for ExExpense to provide the Services in accordance with this Agreement. Subject to the above, ExExpense acquires no right, title or interest from Company or its licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
5.4 Company Data. Subject to the limited rights granted by Company hereunder, ExExpense acquires no right, title or interest from Company or its licensors under this Agreement in or to Company Data, including any intellectual property rights therein.
5.5 Suggestions. ExExpense shall have, and Company hereby grants to ExExpense, a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Company, including Users, relating to the operation of the Services.
5.6 Federal Government End Use Provisions. ExExpense provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with ExExpense to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Company shall include Company Data and financial account numbers; Confidential Information of ExExpense shall include the Services and, irrespective of subsections (i) through (iv) below, all login credentials; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Company Data, financial account information, and login credentials) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any other communications between the parties to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 ExExpense Warranties. ExExpense warrants that (i) it has validly entered into this Agreement and has the legal power to do so, (ii) the Services shall operate materially in accordance with valid and current documentation provided by ExExpense, (iii) subject to Section 3.3 above, the functionality of the Services will not be materially decreased during a subscription term, and (iv) it will not transmit Malicious Code to Company, provided it is not a breach of this subpart (iv) if Company or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Company’s exclusive remedy shall be as provided in Section 10.3 and Section 10.4 below.
7.2 Company’s Warranties. Company warrants that it has validly entered into this Agreement and has the legal power to do so.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4 Non-GA Services. From time to time ExExpense may invite Company to try, at no charge, ExExpense products or services that are not generally available to ExExpense Companys (“Non-GA Services”). Company may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. ExExpense may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by ExExpense. ExExpense shall defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Company”), and shall indemnify Company for any damages, attorney fees and costs finally awarded against Company as a result of, and for amounts paid by Company under a court-approved settlement of, a Claim Against Company; provided that Company (a) promptly gives ExExpense written notice of the Claim Against Company, (b) gives ExExpense sole control of the defense and settlement of the Claim Against Company (provided that ExExpense may not settle or defend any Claim Against Company unless it unconditionally releases Company of all liability), and (c) provides to ExExpense all reasonable assistance, at ExExpense’s expense. In the event of a Claim Against Company, or if ExExpense reasonably believes the Services may infringe or misappropriate, ExExpense may in its discretion and at no cost to Company (i) modify the Services so that they no longer infringe or misappropriate, without breaching ExExpense’s warranties under “ExExpense Warranties” above, (ii) obtain a license for Company’s continued use of the Services in accordance with this Agreement, or (iii) terminate Company’s User subscriptions for such Services upon 30 days’ written notice and refund Company any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
8.2 Indemnification by Company. Company shall defend ExExpense against any claim, demand, suit or proceeding made or brought against ExExpense by a third party alleging that the Company Data, or Company's use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against ExExpense”), and shall indemnify ExExpense for any damages, attorney fees and costs finally awarded against ExExpense as a result of, or for any amounts paid by ExExpense under a court-approved settlement of, a Claim Against ExExpense; provided that ExExpense (a) promptly gives Company written notice of the Claim Against ExExpense, (b) gives Company sole control of the defense and settlement of the Claim Against ExExpense (provided that Company may not settle or defend any Claim Against ExExpense unless it unconditionally releases ExExpense of all liability), and (c) provides to Company all reasonable assistance, at Company’s expense.
8.3 Exclusive Remedy. Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in Section 8.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY COMPANY HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY COMPANY HEREUNDER. THE FOREGOING SHALL NOT LIMIT COMPANY'S PAYMENT OBLIGATIONS UNDER SECTION 4 ABOVE.
9.2 Exclusion of Consequential and Related Damages. EXCEPT IN THE EVENT THAT THE CONFIDENTIALITY OBLIGATIONS OF SECTION 6 ARE BREACHED OR AS PROVIDED IN SECTION 8, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. A User subscription commences on the date that the login credentials for the User subscription are provided to Company. All User subscriptions shall automatically renew on the first day of each calendar month, unless either party gives the other notice of non-renewal at least 30 days before the anticipated date of renewal. The price per subscription during any calendar month shall be the same as that during the immediately prior calendar month unless ExExpense has given Company written notice of a pricing increase. A pricing increase will take effect 30 days after ExExpense gives written notice of the pricing increase to Company. In the event that a pricing increase takes effect in the middle of a calendar month, the difference between the fees assessed to the user based on the previous price per subscription and the fees assessed to the user based on the new price per subscription shall be assessed to Company as a surcharge on the statement generated for the immediately following month.
10.3 Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination. Upon any termination for cause by Company, ExExpense shall refund Company any prepaid fees covering the remainder of the calendar month during which the termination takes effect. Upon any termination for cause by ExExpense, Company shall pay any unpaid fees and outstanding balances owed to ExExpense. In no event shall any termination relieve Company of the obligation to pay any fees payable to ExExpense for any period prior to the effective date of termination.
10.5 Return of Company Data. Upon request by Company made within 30 days after the effective date of termination, ExExpense will make available to Company for download a file of Company Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, ExExpense shall have no obligation to maintain or provide any Company Data and may at its discretion, unless legally prohibited, delete all Company Data in its systems or otherwise in its possession or under its control.
10.6 Surviving Provisions. Sections 4, 5, 6, 7, 8, 9, 10.4, 10.5, 10.6, and 11 shall survive any termination or expiration of this Agreement.
11. GENERAL PROVISIONS
11.1 Export Compliance. The Services, other ExExpense technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each of ExExpense and Company represents that it is not named on any U.S. government denied-party list. Company shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
11.2 Anti-Corruption. Company has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from a ExExpense employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Company learns of any violation of the above restriction, it will use reasonable efforts to promptly notify ExExpense, Inc’s Legal Department (<firstname.lastname@example.org>).
11.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices to ExExpense shall be addressed to the attention of email@example.com. Billing-related notices to Company shall be addressed to the relevant billing contact designated by Company, and Legal Notices to Company shall be addressed to Company and be clearly identified as Legal Notices. All other notices to Company shall be addressed to the relevant Services system administrator designated by Company.
11.6 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.8 Assignment. Company may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of ExExpense. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, ExExpense shall refund Company any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the laws of the State of New Jersey, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.10 Venue; Waiver of Jury Trial. The state and federal courts located in the State of New Jersey shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.11 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any separate agreement accepted by Company to the extent that the separate agreement conflicts with this Agreement. In the event that the separate agreement purports to supersede this Agreement, the later executed agreement shall control. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Company purchase order or in any other Company order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.12 Effective Date. This Agreement is effective as of the date on which you click “Agree”.
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