9.01 Entire Agreement. This Agreement, and any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, whether written or oral, with respect to such subject matter. In the event of any inconsistency between the provisions of this Agreement and any other documents incorporated herein by reference, the provisions of this Agreement shall govern. Each Party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, or warranty other than those expressly set out in this Agreement. Except as set out in this Agreement, all warranties, representations, conditions, terms and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings or otherwise (including, without limitation, as to quality, performance or fitness or suitability for purpose) in respect of the Software and Professional Services are excluded to the fullest extent permitted by law. In no event shall any other provisions, terms or conditions set forth on a Purchase Order be binding on Vendor unless signed by duly authorized representatives of each Party.
9.02 Taxes. Client shall be responsible for any taxes, duties, fees, charges or assessments of any nature appropriately levied by any governmental authority against the Software in Client’s possession or in connection with the sale or import of Software or provision of Professional Services to Client (collectively, “Taxes”). If Vendor is required to pay any such Taxes and/or fines, penalties or assessments as a result of Client’s failure to comply with any laws or regulations governing payment of such Taxes, the amount of any payments so made, plus the expense of currency conversion (if applicable), shall be promptly reimbursed by Client upon submission of Vendor’s invoice thereof. If Client is required to pay any withholding tax on the use of the Software, Client agrees to promptly make such additional payment such that Vendor shall receive fees due hereunder in full and free of any deduction for any such withholding tax.
9.03 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the applicable Order Form (or to such other address as a Party may designate by giving Notice in accordance with this Section 9.03). All Notices must be delivered by: (1) personal delivery by a nationally recognized overnight courier (with all fees pre-paid); (2) email (with confirmation of receipt); or (3) via certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise expressly provided in this Agreement, a Notice is effective only: (a) upon receipt and acknowledgment by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 9.03.
9.04 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control. Such circumstances shall include, but not be limited to, acts of God, communication line failures, power failures, flood, fire, earthquake, explosion, other natural or man-made disasters, all occurrences similar to the foregoing, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, other industrial disturbances, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations superimposed after the fact, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or declaring the implementation of a quarantine or the onset or resurgence of an epidemic or pandemic (any of the foregoing, a “Force Majeure Event”). The affected Party shall notify the other Party in writing within ten (10) days after the beginning of any such event that would affect its performance. Notwithstanding the foregoing, if a Party’s performance of its obligations under this Agreement is delayed for a period exceeding thirty (30) days from the date that such Party issues notice to the other Party about the occurrence of a Force Majeure Event, the non-affected Party shall have the right, without any liability to the other Party, to terminate this Agreement.
9.05 Equitable Relief. Each Party acknowledges and agrees that a breach by such Party of any of its obligations under Article IV (Confidential Information) or, in the case of Client, Article II (Access and Use), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy. The Parties further agree that, in the event of such a breach, the other Party would be entitled to pursue equitable relief, including, where and to the extent permitted under applicable law, a restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction. The Party seeking relief would possess the right to do so without the necessity of: posting a bond or other security; proving actual damages; or proving that monetary damages are not an adequate remedy. Such remedies are not exclusive and would be available to the Party seeking relief in addition to all other remedies that may be available at law, in equity or otherwise.
9.06 Severability. Should any provision of this Agreement be held invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity, legality or enforceability of any other term or provision of this Agreement, nor shall it invalidate or render unenforceable such term or provision in any other jurisdiction. Following a determination by any court or tribunal of competent jurisdiction that any term or other provision of this Agreement is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify such term or provision to achieve their original intent as closely as possible and in order that the transactions contemplated hereunder be consummated as originally contemplated to the greatest extent possible.
9.07 Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights and licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio, in each case located in the city of Cleveland and County of Cuyahoga, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
9.08 Assignment & Subcontracting.
Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party to this Agreement; provided, however, that either Party shall have the right to assign this Agreement to any person or entity that acquires all or substantially all of such Party’s business or assets; and provided further that with respect to any such assignment by Client or a change of control of Client (collectively, “Client Assignment”):
(a) Client shall provide Notice to Vendor within thirty (30) days following the consummation of such Client Assignment;
(b) Vendor shall have the right to renegotiate the terms of this Agreement should the size, scope, type, nature, and/or usage of the Software changes as a result of such Client Assignment; and
(c) Vendor shall have the right to enter into new agreements with entities that emerge from Client as a result of partial or full divestitures.
Vendor’s consent to any assignment shall not constitute a waiver of any claims it may have under this Agreement nor otherwise amend or modify any of the terms and conditions of the Agreement. Any purported assignment or delegation in violation of this Section 9.08 will be invalid. Notwithstanding the foregoing, no assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder, and this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
Client hereby gives its general written authorization to Vendor to engage and utilize subcontractors to provide all or part of the Software and/or Professional Services contemplated under this Agreement. Vendor will enter into written agreements with all such subcontractors which will contain obligations and provisions relating to Confidential Information that substantially align with those undertaken by Vendor in this Agreement. Vendor shall remain fully responsible for the performance of the work assigned to any subcontractor and for the fulfillment of all payment obligations owed to such subcontractor.
9.09 Export Regulation. The Software uses software and technology that may be subject to United States, European Union and other jurisdictions’ (as applicable) export control laws, including the United States Export Administration Act and its associated regulations. Client agrees to comply with such laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), and warrants that it shall not, directly or indirectly, export, re-export, or release the Software or the underlying software or technology to, or make the Software or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client agrees to provide vendor with the destination of the end use of the Software and location of all Authorized Users.
9.10 Prohibition on Corrupt Practices.
(a) Each of the Parties represents, warrants, and undertakes that it shall not engage in corrupt, unfair or fraudulent practices in connection with the provision or use of the Software hereunder. Such practices shall include, but not be limited to, any circumstance in which a Party or an individual counted among its personnel or Authorized Users, either directly or indirectly, accepts bribes or makes offers, payments, or promises to pay money, gifts, or anything of value to any person, including, but not limited to, an executive, official, employee or agent of the following:
i. A governmental department, agency or instrumentality;
ii. A wholly or partially government-owned or controlled or privately-owned or controlled company or business;
iii. A political party (collectively, with (1) and (2) above, “Public Officials”); or
iv. Any person about whom the Party or Authorized User knows or has reason to know will offer, pay or give all or a portion of such money, gift, or thing of value, whether directly or indirectly, to a Public Official, for the purpose of influencing any act, decision or failure to act by such person or other Public Officials or securing an improper advantage in order to obtain, retain or direct business.
(b) Each Party agrees that it will notify the other Party within five (5) business days should it discover that a member of its personnel or other Authorized User has violated this Section 9.10. Each Party agrees that it will record all payments to governmental entities for permits, licenses, expediting charges, or any similar fees, and retain original receipts of all purchases from such governmental entities as well as, where available, scheduled rate cards for such fees. In addition to the foregoing, Vendor represents and warrants that:
i. The information provided to Client for the purpose of fulfilling its anti-bribery and corruption obligations is complete, accurate and not misleading;
ii. It is not subject to sanctions; and
iii. It is not the subject of any allegations of bribery or corruption.
(c) Vendor hereby agrees to notify Client immediately on learning Vendor or its personnel, directly or indirectly, are subject to regulatory enforcement or scrutiny, judicial or law enforcement investigation or litigation of any kind relating to corrupt (including bribery), unfair or fraudulent practices in connection with the provision of the Software hereunder.
(d) Vendor hereby agrees to:
i. Implement and maintain adequate training, policies and procedures for the prevention of corrupt (including bribery), unfair or fraudulent practices that meet or exceed the requirements to comply with applicable anti-bribery and corruption laws, rules and regulations; and
ii. Notify Client of the absence or failing of training, policies and/or procedures relating to the prevention of corrupt (including bribery), unfair or fraudulent practices in connection with the provision of the Software hereunder.
9.11 Amendment and Modification; Waiver.
(a) No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
(b) No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement:
i. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and
ii. No single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.