PRODUCTS AND SERVICES AGREEMENT
THIS PRODUCTS AND SERVICES Agreement (“Agreement”) between Cloud Titans, Inc., a Delaware corporation of 1221 Brickell Avenue, Suite 900, Miami, FL 33131 (“Titans”) and the undersigned (“Client”) is effective upon execution by Client. The capitalized terms in this Agreement shall have the definitions provided herein. Titans and Client agree as follows:
1. Resale. Titans is an authorized reseller of the products and services subject of this Agreement and described in Schedule A (“Products and Services”). This Agreement identifies the Products and Services Client seeks to purchase from Titans in Schedule A and establishes the terms and conditions upon which Titans will sell such Products and Services to Client. The terms and conditions of this Agreement are subject to amendment from time to time by Titans on 30 days prior written notice. Client expressly agrees to be bound by any such revisions prior to termination of this Agreement. All changes to this Agreement will be available for your review here: www.cloudtitans.com/cspterms. Please review these changes thoroughly and often.
2. Authorized Use and Compliance. In addition to the terms and conditions of this Agreement, Client’s purchase, use of and access to Products and Services is subject to compliance with all applicable terms and conditions provided by the publishers or other third-party distributors of the Products and Services described in Schedule A (each and altogether hereafter, “Publisher”), as amended by Publisher from time to time. Products and Services are licensed and not sold. Licenses granted for metered products billed periodically based on usage continue as long as Client continues to pay for its consumption of the Products and Services. Publisher may, in its sole discretion, modify Products and Services, including by adding/removing new features or functionality, or otherwise, from time to time and without prior notice. Titans is not an agent of Publisher and is not authorized to enter into any agreement with Client on behalf of Publisher.
3. Support. Titans provides the support services described in Schedule A. Additional support services are available at Client’s cost by separate agreement.
4. Payment. All fees and charges applicable to Products and Services, and support under this Agreement are described in Schedule A (altogether, the “Fees”). Client acknowledges that Titans purchases Products and Services from Publisher for resale to others. Upon execution of this Agreement, Titans will be obligated to Publisher and/or third parties for the cost of Products and Services delivered to Client under this Agreement. Titans will be billed periodically for metered Products and Services provided to Client under this Agreement based on Publisher usage reports for the prior month. Immediately upon such billing, Titans will charge or invoice Client for such amounts and Client agrees to pay Titans such amounts in accordance with this Agreement. This Section 4 is a material term of this Agreement and Titans would not sell Products and Services to Client on other payment terms.
(a) Payment Due Date. Unless credit terms are made available under paragraph (d) below, all Titans invoices are due immediately upon receipt by Client (the “Due Date”), without setoff. Prepayment for Products and Services may be required initially and at any other time during the term of this Agreement upon written notice by Titans. Failure to pay any amounts due on or before the Due Date is a material breach of this Agreement.
(b) Payment Method. Client must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Titans with a payment method, Client (1) consents to Titans’ use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Titans to charge Client Fees using that payment method on or after the Due Date.
For subscriptions to Products and Services that renew automatically, Client authorizes Titans to charge Client’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Client authorizes Titans to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Titans or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Client for the amount due.
(c) Invoice Payment Terms. Each invoice will identify the amounts payable by Client to Titans for the period corresponding to the invoice. All invoices will be delivered by Titans by email to the Billing Contacts listed in Schedule A. To the extent such Billing Contacts, or either of them, is no longer employed by Client or involved in the payment process of Client for Products and Services under this Agreement, Client will provide Titans with a replacement Billing Contact. It is Client’s sole responsibility to provide Titans with at least two Billing Contacts with valid Client email addresses at all times for purposes of delivering invoices and other important notices under this Agreement.
(d) Extended Invoice Payment Terms of Net 30. Titans may offer eligible Clients Net 30 terms in its sole discretion. Client’s eligibility for Net 30 terms is subject to Titans’ approval of Client’s financial condition as of the date of this Agreement, and from time to time in its sole discretion. Client authorizes Titans to obtain information about Client’s financial condition, including credit reports, to assess Client’s eligibility for Net 30 invoicing. Unless Client’s financial statements are publicly available, Client may be required to provide balance sheets, profit and loss and cash flow statements to Titans from time to time. Client may also be required to provide security for payment in a form(s) acceptable to Titans. Titans may withdraw Client’s eligibility for Net 30 invoicing at any time and for any reason. Client must promptly notify Titans of any changes in its company name or location and of any significant changes in its ownership, structure, or operational activities.
(e) Late Payments. A late fee applies to any invoice remaining unpaid more than fifteen (15) calendar days after the Due Date in the amount of five (5%) percent of the amount remaining unpaid for each month it remains unpaid, but no less than $75 per month, or the highest amount allowed by law if less. Late payments will void any discounts previously offered or applied to unpaid invoices.
(f) Suspension. Upon breach of this Agreement Titans may disable, by electronic means or otherwise, access or prevent use of any products or provided by Titans to Client under this Agreement. All rights of Client hereunder are subject to payment in full of the Fees in accordance with this Agreement. Titans will give Client at least 24 hours’ notice to the Client’s Billing Contacts before suspending Products and Services.
(g) Cancellation Fee. Client shall be responsible for all cancellation fees charged by Publisher for cancellation of Products and Services.
(h) Refunds. (i) Except as provided in Section 6(b) and 6(c) below, Titans does not provide refunds of any amounts paid under this Agreement for any reason. Titans has no obligation to refund any amounts for prepaid Products and Services upon termination by Client. (ii) Client may request that Titans initiate a refund request with Publisher. Any such request must be made by Client to Titans in writing within 30 days of the event giving rise to the refund request. To the extent Titans uses any third-party distributor to provide Products and Services to Client under this Agreement, such refund request must be made directly by such third-party distributor to Publisher. Titans cannot guaranty that such third-party distributor will make a refund request to Publisher. Publisher may or may not consider any refund request made. If Publisher does consider a refund request, there is no guarantee it will refund any amount. All refund determinations are made directly by Publisher and not by Titans. Titans may offset amounts due to Titans with any credits granted or credit memos issued by Publisher to Titans on Client’s behalf. Initiating a refund request with Publisher or a third-party distributor does not change the Due Date or payment terms of any Titans invoice. All amounts invoiced to Client by Titans remain due and are payable in accordance with this Agreement notwithstanding any refund request. The process of requesting and receiving any refund from Publisher or a third-party distributor can be lengthy. To the extent any refund is issued to Titans in favor of Client by Publisher, such refund will be first applied to any amounts due under this Agreement, or other amounts due from Client to Titans until such refund is exhausted, and any remaining balance shall be delivered to Client.
(i) Taxes. Titans prices exclude applicable taxes unless specifically identified as tax inclusive. Client shall pay all applicable sales, use, excise, value added, goods and services, gross receipts, or other similar transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges, assessments or duties or similar amounts imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of company that is in accordance with the direction or request of customer) that are based on or with respect to any Products and Services provided by Titans to Client, or the amounts payable to Titans therefore. Client shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of any Products and Services by Client to its affiliates. Titans shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership. If Titans or Client is subject to an audit by a government agency responsible for the administration of taxes applicable to this Agreement, Titans and Client agree to use reasonable efforts to cooperate in defense of such audit.
5. Client Responsibilities.
(a) Client will provide Titans with the cooperation, access and information required by Titans to implement, configure, maintain, support and deliver the Products and Services, including, where applicable, test time on Client’s computer systems and networks and personnel appointed for project management as set forth below.
(b) Client acknowledges and agrees that it is solely responsible for:
(i) Client use of Products or Services delivered by Titans under this Agreement;
(ii) Use of Products or Services delivered by Titans under this Agreement to any affiliate of Client;
(iii) Compliance with terms and conditions of this Agreement and all other agreements applicable to Client use of Products or Services delivered by Titans under this Agreement;
(iv) Compliance with applicable laws governing use of Products or Services delivered by Titans under this Agreement;
(v) Monitoring consumption of Products and Services and enabling consumption warnings and governance of all metered Products and Services. Client acknowledges and agrees that Titans is not responsible for costs incurred by Client from metered Products and Services;
(vi) Validating Products and Services Prior to Provisioning. Any problems or other issues with Products and Services provisioned by Titans pursuant to this Agreement must be disclosed to Titans within five (5) business days of provisioning. Titans will honor Publisher’s terms for any refund granted by Publisher for such Products and Services, which may include a restocking fee if the Products and Services are not correct or returned before the end of the license term. Some Products and Services are non-refundable;
(vii) Payment of all amounts billed to Client accounts by Publisher for Products and Services delivered by Titans in accordance with this Agreement;
(viii) Monitoring and reviewing any changes to this Agreement as provided above;
(ix) Notifying Titans at least 3 business days in advance regarding the details of any changes by Client to the Products and Services purchased under this Agreement;
(x) Accept all relationship and administration permission links which are required to provision Products and Services and provide access for Publisher Support Services and Titans Support Services when needed;
(xi) Notifying Client’s insurance providers of the work to be undertaken by it and Titans under this Agreement in connection with Client’s computer systems and information systems; and
(xii) All other Client responsibilities specifically identified in Schedule A.
(c) Client will be the primary administrator for Client’s account(s) for all Products and Services. Client will not identify Titans as the primary administrator on any Client account for Products and Services, or other products or services.
(d) Titans will be excused from its failure to perform any obligation under this Agreement to the extent such failure is caused by Client’s delay or failure to perform its responsibilities.
(a) Term. The term of this Agreement shall commence on the date it is executed and delivered by Client and shall continue until terminated as provided below. This Agreement shall automatically terminate upon the termination of Client’s right to use of the Products and Services.
(b) Termination Without Cause. Either party may terminate this Agreement without cause on 90 days’ prior written notice to the other. Termination without cause will not affect Client’s prepaid licenses for Products and Services, which will continue for the duration of the applicable subscription period(s), subject to the terms of this Agreement. All refunds, to the extent available, are subject to the terms of Section 4(h) above. Client may not terminate this Agreement without cause unless and until all amounts due and owing to Titans have been paid in full, and Client has prepaid amounts requested by Titans for non-invoiced metered Products and Services based on estimated consumption. Client will receive a refund of any prepaid amounts in excess of actual consumption.
(c) Termination With Cause. Without limiting other remedies it may have, either party may terminate this Agreement for material breach on 60 days’ (“Notice Period”) prior written notice to the other if the other party fails to cure the breach within the Notice Period. Upon such termination: (1) All licenses granted under this Agreement will terminate immediately except for fully-paid licenses. Paid up licenses will continue through the expiration date. No refund will be made for perpetual or term licenses; (2) Client may not terminate this Agreement unless and until all amounts due and owing to Titans have been paid in full; and (3) Client shall prepay amounts requested by Titans for non-invoiced metered Products and Services based on estimated consumption. Client will receive a refund of any prepaid amounts in excess of actual consumption. During any Notice Period, Client agrees to engage with Titans in good faith efforts to resolve any disputes and, as required, plan for migration of existing resources without compromising business continuity.
(d) Notice to Terminate. Termination shall not be effective under any circumstances until Client has completed the required Client Cancellation Request Form attached as Schedule B.
7. Limitation of Liability. Titans makes no representations or warranties to Client and provides no indemnity to Client against any claims related to Products and Services, Publisher Support Services or other Products and Services, or Client’s use of Products and Services or Publisher Support Services or other Products and Services. Titans does not assume or undertake any indemnification obligation on behalf of Publisher with regard to Products or Services or Publisher Support Services. Nothing in this Agreement shall be deemed nor construed to create any direct or indirect indemnification obligations on behalf of Publisher or any third-party.
To the maximum extent permitted by applicable law, Titans disclaims and excludes, directly and on behalf of its suppliers, subcontractors, agents and Publisher all representations, warranties, and conditions whether express, implied or statutory, including but not limited to representations, warranties, or conditions of title, non-infringement, satisfactory condition, merchantability and fitness for a particular purpose, with respect to any products or services provided hereunder. All Products and Services of third parties are subject to the terms and conditions set forth in the Publisher’s warranty or end-user license packaged with such Products and Services with no further warranty of any kind from Titans, including any warranty that such Products and Services shall be free from defects in design, material or workmanship, or that third party Products and Services will be available and delivered without interruption for any reason.
To the maximum extent permitted by applicable law, notwithstanding anything to the contrary contained in this Agreement: (i) neither party, their respective employees, agents or affiliates, will be liable for any indirect, consequential (including without limitation, damages for business interruption, or loss of business information), special, punitive or incidental damages or damages, or loss of use, loss of revenues or profits, or interruption of business, however caused or on any theory of liability, in connection with this Agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable; and (ii) the maximum and total liability of Titans, its agents or affiliates, in connection with Client’s assertion of any one or more claims against Titans, its agents or affiliates, whatever the legal basis for such claims, is limited to direct damages up to the amount paid to Titans in the aggregate for the products and/or services giving rise to such claims during the immediately preceding 12 month period. No limitation or exclusions will apply to liability arising directly from either party’s intentional conduct or gross negligence documented by clear and convincing evidence of breach of the following (1) confidentiality obligations (except for liability related to Client Data, which will remain subject to the limitations and exclusions herein); and (2) violation of the other party’s intellectual property rights.
(a) Personal Data. “Personal Data” means any information relating to an identified or identifiable natural person. Client consents to the processing of Personal Data by Titans and Publisher, their affiliates, agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Titans or Publisher, Client will obtain all required consents from third parties (including Client’s contacts, partners, distributors, administrators, and employees) under applicable privacy and data protection laws.
To the extent permitted by applicable law, Personal Data collected by Titans under this Agreement may be transferred, stored and processed in the United States or any other country in which Titans or its affiliates, or their respective agents and subcontractors, maintain operations. Titans will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.
(b) Client Data. “Client Data” means all data, including all text, sound, software, image or video files that are provided to Titans by, or on behalf of, Client under this Agreement. During any period in which Titans has possession or control of Client Data, Titans will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, including without limitation, measures designed to prevent unauthorized access to or disclosure of Client Data to unauthorized persons. Upon request by Client made within 90 days after the effective date of termination or expiration of this Agreement, Titans will make any Client Data in its possession available to Client for export or download. After such 90-day period, Titans will have no obligation to maintain or provide any Client Data and may thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited.
Except as otherwise specifically provided herein, as between the Client and Titans, Client Data will be and remain the property of Client. Titans shall not use Client Data for any purpose other than to render services under this Agreement. No Client Data may be sold, assigned, leased, or otherwise disposed of to third parties or commercially exploited by or on behalf of Titans. Titans shall not possess or assert any lien or other right against or to Client Data. Without limiting the generality of the foregoing, Titans may only use personal identifying information of Client as strictly necessary to render the services and must restrict access to such information to Titans personnel on a need-to-know basis. When accessing Client Data, Titans will observe and comply with Client’s security procedures that have been communicated to Titans in writing. Titans will establish and maintain safeguards against the destruction, loss, or alteration of Client Data in its possession or control that are no less rigorous than those safeguards maintained by Client as of the effective date and communicated to Titans in writing and are no less rigorous than those maintained by Titans for its own data of a similar nature. In carrying out any activities under this Section 8, Titans will observe and comply with applicable European Union data privacy and data protection laws and regulations.
9. Client Intellectual Property. The parties acknowledge that Client may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, services, training, ideas, skills, designs, know-how or other intellectual property owned by Client or its licensors, and Client may also create additional intellectual property based thereon, in the performance of this Agreement (all of the foregoing, the “Client Intellectual Property”). Client shall maintain all ownership, rights, and title to its Client Intellectual Property. Titans agrees that all proprietary rights to the Client Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of performance under this Agreement, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of Client, free from any claim or retention of rights thereto on the part of Titans, and Titans hereby assigns to Client any rights it may have or obtain in any of the foregoing. Client shall defend, indemnify and hold harmless Titans from and against any and all third-party losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs alleging that the Client Intellectual Property infringes any U.S. patent, trademark or copyright.
(a) Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Client Data, and the terms of this Agreement. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, Products and Services.
(b) Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
(c) Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
(d) Residual information. Neither party is required to restrict work assignments of its representatives who have had access to Confidential Information. Each party agrees that the use of information retained in representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
(e) Duration of Confidentiality obligation. These obligations apply (1) for Client Data, until it is deleted from Titans systems; and (2) for all other Confidential Information, for a period of three years after a party receives the Confidential Information.
11. Defense of Third-Party Claims. The parties will defend each other against the third-party claims described in this Section 11 and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This Section 11 describes the parties’ sole remedies and entire liability for such claims.
(a) Titans will defend indemnify and hold harmless Client from and against any third-party claim to the extent it alleges that any deliverable other than Products and Services provided by Titans for a fee under this Agreement, misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Titans is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace such deliverable with a functional equivalent, or (2) terminate Client’s license and refund any license fees for such deliverables (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Titans will not be liable for any claims or damages due to Client’s continued use of a deliverable provided by Titans under this Agreement after being notified to stop due to a third-party claim.
(b) Client will defend indemnify and hold harmless Titans and its affiliates from and against any third-party claim to the extent it alleges that: (1) any Client Data, Client Intellectual Property or third-party product used by Client misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; (2) Client’s use of a third-party product, alone or in combination with anything else, violates the law or harms a third party; or (3) Client’s use of any deliverable provided by Titans under this Agreement for a purpose other than the specific purpose for which such deliverable was provided misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party.
12. No Third Party Rights. Client acknowledges that Publisher is not a party to this Agreement. This Agreement does not create, confer upon or give Client any third-party beneficiary rights against Publisher or any other party; or otherwise impose upon Publisher or any other party any direct obligation under this Agreement.
13. Entire Agreement. This Agreement, together with all schedules, exhibits and other Titans agreements referenced herein constitute the entire agreement of the parties with respect to the subject matter hereof. This Agreement is a legally binding document between Titans and Client. This Agreement supersedes all prior written and oral understandings between Titans and Client regarding the subject matter hereof. This Agreement is further subject to the agreements between Publisher and the distributors of Publisher-branded Products and Services, and any applicable agreement(s) between Titans and Publisher and the Client and Publisher regarding use or access of Products and Services.
14. Authority; Binding Agreement. The undersigned signatory of Client represents and warrants to Titans that the signatory: (i) is authorized to bind Client; and (ii) agrees on behalf of Client that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter of this Agreement and waives any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement.
15. Disputes. Both parties agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement. If necessary, such disputes shall be escalated to appropriate senior management of each party. In the event that such good faith settlements fail, excluding any and all disputes and controversies arising out of nonpayment of invoices, any and all other disputes and controversies of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Agreement shall be submitted to binding arbitration, pursuant to the Rules of the American Arbitration Association, before a single arbitrator in New York County, New York. In the event the parties cannot agree on the arbitrator, then an administrator of the American Arbitration Association shall select an appropriate arbitrator from among arbitrators of the American Arbitration Association with experience in commercial disputes related to technology products. This Agreement shall be governed by New York law, without reference to choice of laws. If any dispute is not subject to arbitration as described above, Titans and Client agree to venue in the applicable federal and state courts for New York County, New York. The United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The prevailing party in any dispute in connection with this Agreement shall be entitled to recover reasonable attorneys' fees and expenses incurred. Notwithstanding the foregoing, claims by Titans against Client for unpaid invoices are not subject to arbitration.
16. Insurance. Client represents and warrants that it has insurance coverage sufficient to protect Client from financial losses from risks arising under this Agreement, and regardless of the actual cause or nature of such losses.
17. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect. If such invalidity or unenforceability is due to the court's determination that the provision's scope is excessively broad or restrictive under applicable law then in effect, the parties hereby jointly request that such provision be construed by modifying its scope so as to be enforceable to the fullest extent of applicable law then in effect. If any provision is held to be invalid or unenforceable with respect to a particular circumstance, such provision shall nevertheless remain in full force and effect in all other circumstances.
18. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
19. Notice. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date unless the email transmission date is a national holiday, Saturday or Sunday, in which case the email transmission date shall be deemed to be the next business day, or date on the courier or fax confirmation of delivery. Notices to Titans must be sent to the following address: Cloud Titans, Inc., 1221 Brickell Avenue, Suite 900, Miami, FL 33131. Notices to Client will be sent to the individual at the address Client identifies on its account as its contact for notices. Titans may send notices and other information to Client by email or other electronic form.
20. Neutral Construction. The construction and interpretation of any part of this Agreement shall be construed without regard to the identity of the party that prepared this Agreement, and no presumption shall arise as a result that this Agreement was prepared by one party or the other.
21. Assignment. Either party may assign this contract in connection with the sale of the company or substantially all of its assets. Otherwise, neither party may transfer any right or power or delegate any of its duties or obligations under this Agreement without the prior written consent of the other party. Assignment will not relieve either party of its obligations under the assigned Agreement. Any other attempted assignment is void.
22. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment) in two or more counterparts, and by the different parties in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Any such counterpart, to the extent delivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
23. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
24. Media. Each party may use logo of the other party and nonspecific project information for marketing purposes such as whitepapers, customer lists, case studies, partner awards, in any media.
25. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.