These Terms and Conditions (the “Terms and Conditions”) are entered into by and between Analytic.li, LLC, an Indiana limited liability company (the “Developer”) and the customer (the “Customer”) ordering Developer’s software product (the “Application”) through the ADP Marketplace. Customer’s ADP Marketplace order (the “Order”) along with these Terms and Conditions constitutes a binding agreement between Customer and Developer (the “Agreement”). Developer and Customer may be referred individually as a “Party” or together, collectively, as the “Parties.” An “Affiliate” is any entity directly or indirectly controlling, controlled by, or under common control with Customer. Customer will be responsible for and liable for the acts and omissions of each Affiliate and end user. Any breach of this Agreement by an Affiliate or end user shall be deemed to be a breach of this Agreement by Customer.
1. ADP Marketplace Limitations.
(a) This Agreement is between Developer and Customer.
(b) Developer, and not ADP or its vendors, is solely responsible for providing, maintaining, supporting, and updating the Application and its associated services. Developer shall provide product support for the Application. Customer may access support via the following means:
(c) DEVELOPER HEREBY DISCLAIMS ON BEHALF OF ADP AND APPDIRECT ANY EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS OR WARRANTIES, AND ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
(d) Customer’s and each end user’s sole and exclusive recourse under this Agreement shall be against Developer. ADP and AppDirect shall have no liability or obligation to Customer or any end user.
(e) Customer and end users will not (i) decompile or reverse engineer the ADP Marketplace or take any other action to discover the source code or underlying ideas or algorithm of any component thereof, (ii) copy the ADP Marketplace, (iii) post, publish, or create derivative works based on the ADP Marketplace, or (iv) remove any copyright notice, trade or service marks, brand names, and the like from the ADP Marketplace or related documentation.
(f) ADP and AppDirect are third party beneficiaries under this Section 1, and each is entitled to enforce such terms as if it were a party to this Agreement.
(a) Grant of License. Developer grants Customer a nonexclusive license to access and use the Application during the Term. Developer reserves all other rights with respect to the Application. In the event of any termination of this Agreement, or at the expiration of the Term, the license granted hereunder shall automatically and immediately terminate and all rights granted to the Customer thereunder shall immediately revert in their entirety to the Developer.
(b) Restrictions and Use. Customer shall use the Application solely for its internal business purposes as contemplated by this Agreement, and Customer will not itself, nor shall Customer permit or enable any third party to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit or make the Application available to any third party for any unauthorized purpose or in any unauthorized manner; (ii) make any modifications of any type to any Application; (iii) interfere with or disrupt the integrity or performance of the Application or the data contained therein, or otherwise disrupt, corrupt, or alter Application data or information from its intended state; (iv) attempt to gain unauthorized access to the Application or Developer, or their related systems or networks; (v) decompile, disassemble, decode, reproduce, redesign, or reverse engineer the Application or its component parts, or attempt to do the same; (vi) send via, upload to, or store within the Application any malicious code; (vii) send via or store within the Application any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; or (viii) otherwise violate or hinder the Application or Developer’s rights in or to the Application. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Application and will notify Developer immediately if it becomes aware of any unauthorized access to or use of the Application by any person.
(c) Provider Agreements. To the extent required by Developer, Customer shall execute any and all agreements, documents, or instruments necessary for ADP (the “Provider”) to provide the Customer access to the Provider’s products and/or services (collectively, “Provider Agreements”), and Customer shall adhere to all terms and conditions of the Provider Agreements and timely discharge all of its obligations thereunder, including but not limited to, payment obligations. To the extent a Provider requires data to be input into Provider’s platform in connection with the provision of such Provider’s products and/or services, Customer acknowledges that it shall, at all times, be solely responsible for timely input and review of all such data in the respective Provider’s platform and ensure accuracy thereof.
(d) Customer Responsibilities. Customer shall permit the Application to create a new administrative level report user within Customer’s Provider instance, provide full access to the user account to Developer, and allow Developer to access data in a manner and format as required by Developer to perform the Application. Customer shall configure and load, and permit Developer to configure and load, Customer Data and other information onto the Application as required by Developer in order for Developer to perform the Application. Customer will provide reasonable assistance and information as necessary to complete configuration and loading. Except as to functions, responsibilities, activities or tasks directly related to Application, all other functions, responsibilities, activities, or tasks not part of the Application shall remain the sole obligation of the Customer, and Customer shall cooperate with Developer to provide and facilitate provision of all information necessary to perform the Application. Customer is responsible for all activities that occur in Customer’s Application account(s). Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and other information provided to Developer through Developer’s provision of the Application; (ii) prevent unauthorized access to, or use of, the Application, and notify Developer promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Application.
(e) Provider Integration and Account Access. “Customer Authorized Administrator” means an employee of Customer designated to administer the Application. “Customer Interface” means Developer’s user interfaces through which Customer Authorized Administrator or a Representative may access the Application. “Representative” means any individual designated by the Customer Authorized Administrator to access the Application. The Customer Authorized Administrator shall be assigned a unique username and a password by Developer. The Customer Authorized Administrator may appoint one or more Representatives, each of whom shall be assigned a unique username and password. Access to the Customer Interface by the Customer Authorized Administrator and/or the Representative(s) is accomplished through the use of such usernames and passwords. Usernames and passwords assigned to the Customer Authorized Administrator and any Representative(s) should be kept strictly confidential to prevent unauthorized use. Customer shall be liable for any use of the Application using a username and password assigned to the Customer Authorized Administrator and/or a Representative. THE APPLICATION DOES NOT ALLOW FOR THE TRANSFER OF PERMISSIONS OR ACCOUNT ACCESS RESTRICTIONS FROM PROVIDER PLATFORMS. ADMINISTRATIVE ACCOUNT LEVEL USERS OF THE APPLICATION HAVE FULL ACCESS TO ALL DATA WITHIN THE PROVIDER SERVICE. PLEASE DO NOT PROVIDE ADMINISTRATIVE ACCOUNT ACCESS TO ANY INDIVIDUAL YOU FO NOT WITH TO HAVE FULL ACCESS TO ALL DATA WITHIN A PROVIDER SERVICE.
(f) Application Disclaimers. Customer acknowledges that Providers, and not the Developer, are largely responsible for the uptime and availability of data for the Application. The Developer cannot always control the uptime of the Application, and therefore the Developer does not guarantee the availability of end-user functions and is not responsible for any downtime outside of Developer’s control. Customer hereby waives and forever disclaims all claims that it now has or may have in the future arising out of downtime occurring outside of Developer’s control. Customer acknowledges the Application is not designed to modify, overwrite, or make changes to Customer’s data, but rather to provide Customer a certain view of Customer’s existing data. Developer provides such data by automatically implementing incremental loads each evening to refresh Application data, with manual refreshes available upon Customer request. Developer shall be entitled to rely on the information, authorizations, representations and warranties provided by Customer or Customer’s authorized representatives pursuant to this Agreement, and shall not be responsible for the accuracy or completeness thereof nor be responsible for any consequences, losses, damage or other harm that may arise therefrom. The Parties acknowledge and agree that there are functions, responsibilities, activities and tasks not specifically described in this Agreement which may be required for the proper performance and provision of the Application and may be necessary, customary or inherent part of the Application. Such functions, responsibilities, activities and tasks shall be deemed to be implied and included within the scope of the Application to the same extent and in the same manner as if specifically described in this Agreement. The Parties recognize that it may not be possible in all cases to determine clearly whether a given function, responsibility, activity or task should be performed by Developer as an inherent part of the Application or instead should be retained by Customer as a responsibility that has not been transferred to Developer. The Parties agree to work together in good faith in such cases to appropriately assign responsibility for the performance of such function, responsibility, activity or task, including those described in the Order. While the Parties will endeavor to update, modify and amend this Agreement as necessary or appropriate from time to time to reflect various adjustments in the arrangements contemplated by this Agreement (including the increase or decrease in fees related to the Application as more specifically set forth in the Order), the Parties acknowledge that such adjustments may not always be documented with specificity. Therefore, the Parties agree to deal with each other in good faith to resolve all issues presented by each Party to the other and any disputes that may arise.
3. Term and Termination.
(a) Term. This Agreement will become effective when the Order is executed by Customer (the “Effective Date”). The initial term of this Agreement will commence on the Effective Date and will continue for one (1) year (the “Initial Term”), unless earlier terminated by either Party. The Agreement shall thereafter renew for additional one (1) year periods (each a “Renewal Term”) until terminated by either Party (the Initial Term and each subsequent Renewal Term, collectively, the “Term”). Either Party may terminate this Agreement for any reason by providing the other Party written notice of non-renewal at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Term. Improper or untimely notice hereunder shall be invalid, non-effective, and void.
(b) Termination. This Agreement may be terminated by either Party (a) upon thirty (30) days prior written notice to the other Party in the event the other Party breaches this Agreement and does not cure such breach within said thirty (30) day period; or (b) if the other Party ceases to do business in the normal course, becomes or is being declared insolvent or bankrupt, is the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or makes an assignment for the benefit of its creditors. Upon termination or expiration of this Agreement for any reason: (a) Developer’s obligation to provide the Application will terminate; (b) Customer’s license to and use of the Application will be terminated, and Customer thereafter shall not access, re-download, re-register or otherwise make use of, or attempt to use, the Application; (c) all charges for Application performed prior to the date of termination will become immediately due and payable; and (d) Developer will truncate all data from Developer’s operational data system and data warehouse and remove all Customer authentication rights to the Application without additional notice to Customer of same, which action Developer will typically perform thirty (30) or more days after termination, but Developer reserves the right to perform these actions in more or less than thirty (30) days in its sole discretion. All provisions of this Agreement, which by their nature should survive termination shall survive the termination of this Agreement, including, without limitation, provisions regarding fees and payments, ownership, warranty disclaimers, indemnity, and limitations of liability.
(c) Disposition of Data after Termination. Developer will have no obligation to save or maintain Customer Data or continue to service Customer’s account in any way past thirty (30) days after termination. Developer may maintain certain data, such as previous Developer database backups or information Developer is required to maintain as needed after termination. Customer’s rights to data shall be limited to Customer Data and Customer shall have no rights during or past the moment of termination of the Agreement to data collected and/or created by Developer resulting from Customer’s use of the Application. Customer shall reimburse Developer for the costs of producing any information in Developer’s possession or control relating to Customer’s business or employees that the Developer is obligated to produce in response to a Customer request or court order. Nothing in this section shall limit Developer’s ability to utilize Customer Data in an aggregated, anonymized, and/or de-identified form for Developer’s business purposes after the Term, as set forth in Section 4(b) herein.
4. Fees and Payments.
(a) Fees. Customer will pay the fees set forth in the Order including any applicable Taxes (as defined below), pursuant to the payment schedule identified therewith. All fees are non-refundable. In any action arising from or related to Customer’s failure to timely pay any amount due to Developer, Developer shall be entitled to recover its full costs and expenses related to such action, including but not limited to its reasonable attorneys’ fees and legal expenses. The Developer shall not be obligated to provide Application if Customer fails to timely remit payments . If Customer’s account is overdue, the Developer may, in addition to any of its other rights or remedies, suspend its provision of Application until such amounts owed by Customer to the Developer are paid in full. The Developer shall not be obligated to provide any such Application suspended by the Developer due to such failure to pay at any time, including, without limitation, after the resumption of Application or otherwise. Customer is obligated to pay for all fees and expenses set forth in this Agreement through the Initial Term and any Renewal Term. Notwithstanding the foregoing, Developer may change or increase the prices it charges Customer for the Application at any time after the conclusion of the Initial Term effective thirty (30) days after providing written notice of such changes to Customer. Unless otherwise stated, the fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes applicable to this Agreement.
5. Confidentiality and Privacy; Non-Solicitation.
(a) Confidential Information. Neither Party shall disclose Confidential Information of the other Party except as required to fulfill its obligations hereunder, except that the Developer may transfer Customer’s Confidential Information to a Provider, a governmental agency, or other third parties to the extent necessary for the Developer to perform its obligations under this Agreement, or if Customer has given the Developer authorization to do so. “Confidential Information” shall mean any information identified by either Party as “Confidential” and/or “Proprietary”, or which, under the circumstances, ought to be treated as confidential or proprietary, including non-public information related to the disclosing Party’s business, employees, service methods, software, documentation, financial information, prices, and application plans. The receiving Party shall use the same degree of care it uses to protect its own Confidential Information of like nature, but not less than a reasonable degree of care, to maintain in confidence the Confidential Information of the disclosing Party. The foregoing obligations shall not apply to any information that (i) is at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving Party, (ii) is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving Party, or (iii) is required to be disclosed by law, subpoena or other process. Each Party acknowledges and agrees that any breach or threatened breach of any of the Confidentiality and Intellectual Property provisions of this Agreement by the other Party will result in immediate and irreparable harm and that any remedies at law in such event will be inadequate. The Parties therefore agree that, in addition to any and all other remedies available at law or in equity, the claimant Party shall be entitled to seek injunctive and other equitable relief, without posting bond.
6. Intellectual Property & Customer Data.
(a) Developer Technology. Customer acknowledges that the license granted it by Developer hereunder is limited as described in Section 1, and except as otherwise explicitly set forth in writing and agreed upon by the Parties, all right, title and interest in and to all patents, copyrights, trade secrets, trademarks, logos, displays and other intellectual property rights in the Application, whether now known or later arising, together with all modifications, improvements, enhancements, updates, localizations and translations thereof (collectively, “Developer Technology”), are, and at all times will remain, the sole and exclusive property of Developer. Nothing contained in this Agreement may directly or indirectly be construed to assign or grant to Customer or any third party any license, right, title or interest in or to the Developer Technology except as necessary to use the Application, or as otherwise expressly provided in this Agreement. Customer acknowledges that the Application contain valuable trade secrets and confidential information owned by Developer, including but not limited to the development status of the Application and software, the functionality of the Application, the appearance, content and flow of the Application’ software screens, the method and pattern of user interaction with the Application, and the content of the Application documentation (“Trade Secrets”). Trade Secrets shall be treated as Confidential Information under this Agreement. The Developer reserves the right to independently use its experience and know-how, including processes, ideas, concepts and techniques developed in the course of performing Application under this Agreement.
(b) Customer Data, Anonymization, and Aggregation. Customer hereby grants Developer a perpetual, non-exclusive license to (i) store, copy and use all data provided by or on behalf of Customer to Developer under this Agreement and in the course of providing the Application, including but not limited to source transaction system data (“Customer Data”) to the extent necessary to perform its obligations under this Agreement and comply with applicable law; (ii) retain Customer Data for a commercially reasonable time for backup, archival, and/or audit purposes; and (iii) use and disclose Customer Data in an aggregated, anonymized, and/or de-identified form for Developer’s business purposes, during and after the Term, such as, but not limited to, for benchmarking and industry analysis. Customer agrees Developer may monitor the use of the Application by Customer to assess the quality of the Application, analyze users’ use of the Application, and confirm Customer’s compliance with this Agreement. Customer shall comply with all applicable laws and regulations in using the Application, will not use or require Developer to use the Application for any unlawful purpose, and will not engage in any activity that interferes with or disrupts the Application. Developer reserves the right to suspend the Application if Customer violates any obligation set forth in this Section.
(c) Materials. All materials furnished by the Developer to Customer (“Materials”), including but not limited to Developer proprietary documents and forms, are provided under a personal, non-transferable, limited, revocable and non-exclusive license to Customer to use Materials solely for the Customer’s own internal business use. Customer does not have the right to copy, distribute, reproduce, alter, display, or use these Materials or any Developer trademarks for any other purpose. Customer agrees that (a) it will keep Materials as Confidential Information and will use commercially reasonable efforts to prevent and protect the content of Materials from unauthorized use and (b) its license to use Materials ends on the termination date of this Agreement. Upon termination, Customer shall destroy the Materials or, if requested by the Developer, return them to the Developer. All right, title, and interest in, to, and under the Materials is and shall remain the sole property of the Developer, subject to the rights expressly granted to Customer in this Agreement. Customer may not reverse engineer, decompile, or disassemble the Application or the Materials. All right, title, and interest, including copyright, patent, and other intellectual property right, in and to any improvements or enhancements made to the Application or the Materials shall automatically vest in the Developer and be the sole property of the Developer without any further action by Customer or Developer.
(d) Publicity and Trademarks. Neither Party may issue press releases or any other public announcement of any kind relating to this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, during the Term, either Party may include the name and logo of the other Party in lists (including on its website) of customers or vendors in accordance with the other Party’s standard logo and/or trademark usage guidelines. Except as set forth herein, neither Party may use the trademarks and trade names of the other Party without the prior written consent of the other Party.
7. Data Security. Each of the Parties shall at all times be in material compliance with all applicable laws, regulations, and requirements relating to data security and privacy. Customer is solely responsible for the security and integrity of its systems, software, equipment, and data centers that it uses in its business or in connection with the Application. Developer employs commercially reasonable security measures in accordance with prevailing practices in the software-as-a-service industry that are designed to protect Customer Data, including encrypting Customer Data at various points within the Application and while Customer Data is in transit and at rest within the Application-related platform (the “Application Platform”). Customer acknowledges that when Customer Data is transferred or exported outside of the Application, such Customer Data is no longer encrypted and may be viewable. For example, should Customer export Customer Data from the Application or Application API into Microsoft Excel® or another program, or export Customer Data from an Application dashboard to another tool, the data is decrypted. Customer explicitly acknowledges and agrees that Customer alone is solely responsible for the use and security of all Customer Data outside of the Application. In the event that Developer must perform additional application with respect to a security breach or unauthorized access affecting Customer Data caused by an act or omission of Customer, a Provider, a Customer Authorized Administrator, or a Representative, Developer shall be compensated by Customer at Developer’s then-current rates for such application.
8. Limitation of Remedies. IN NO EVENT SHALL DEVELOPER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE MAXIMUM AGGREGATE LIABILITY OF DEVELOPER TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID TO DEVELOPER BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE LOSS. THIS REMEDY IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY. THE DEVELOPER WILL NOT BE RESPONSIBLE FOR FAILURE TO PROVIDE APPLICATION IF DUE TO ANY CAUSE OR CONDITION BEYOND THE REASONABLE CONTROL OF DEVELOPER.
9. Mutual Warranties; General Warranty Disclaimer. Each Party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization (and in the case of Customer, the authority to bind all Affiliates); and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE APPLICATION ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND. THE DEVELOPER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APPLICATION NOT OTHERWISE SPECIFICALLY PROVIDED HEREIN, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE, ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AND ANY WARRANTIES OF QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APPLICATION, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY THE DEVELOPER. DEVELOPER DOES NOT WARRANT THAT THE APPLICATION OR HARDWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER’S USE OF THE APPLICATION IS AT ITS OWN RISK. DEVELOPER MAKES NO WARRANTIES AND ASSUMES NO RISK FOR ANY LIABILITY RESULTING FROM CUSTOMER’S RELIANCE ON THE APPLICATION, CUSTOMER’S USE OF THE APPLICATION, OR OTHERWISE. CUSTOMER SHOULD NOT MAKE DECISIONS STRICTLY ON THE MERITS OF DEVELOPER’S APPLICATION OR THE DATA PROVIDED THEREBY AND DEVELOPER STRONGLY ADVISES USING ADDITIONAL FORMS OF INFORMATION TO MAKE DECISIONS.
(a) By Developer. Subject to this Section 8(a) and the Limitation of Remedies provisions of this Agreement, Developer shall defend, indemnify, and hold harmless Customer and its employees from and against any and all suits, actions, damages, costs, losses, expenses (including reasonable outside attorneys” fees), and other liabilities (each a “Claim”) arising from or in connection with allegations that the Application or any related services violates or infringes an intellectual property right of a third party, or invades or infringes any right of privacy or right of publicity of any person or entity. Developer shall, at its sole expense, conduct the defense of any such Claim and all negotiations for its settlement of compromise; provided, however, that: (a) no settlement or compromise of such a Claim shall be entered into or agreed without Customer’s prior approval (not to be unreasonably withheld or delayed); and (b) Customer shall have the right to participate, at its own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect its own interests.
(b) By Customer. Customer shall defend, indemnify, and hold Developer harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with the breach of any warranty or representation made by Customer in this Agreement or in connection with a Claim made or brought by a third party against Developer resulting from Customer’s negligence or willful misconduct with respect to its obligations hereunder or herein; provided, however, that Customer shall have no such indemnification obligation to the extent such Claim arises from Developer’s negligence or willful misconduct.
(c) Procedure. As an express condition to the indemnifying Party’s obligation under this Section, the Party seeking indemnification must: (a) promptly notify the indemnifying Party in writing of the applicable Claim for which indemnification is sought, provided that a delay or failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations under this Agreement except to the extent that the indemnifying Party has been prejudiced or otherwise harmed by such delay or failure; and (b) provide the indemnifying Party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying Party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified Party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying Party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified Party. The indemnifying Party must obtain the indemnified Party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified Party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
(11) Notices. All notices, requests and communications to the Parties shall be in writing and shall be given to the Parties at their respective address or email address as identified herein or to such other address or email address as either Party may hereafter specify by notice to the other Party. Each such notice, request, or communication shall be effective upon confirmed receipt, provided that if the day of receipt is not a business day, then the notice shall be deemed to have been received on the next succeeding business day.
(12) Force Majeure. If either Party is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Agreement, that Party shall give to the other Party prompt written notice of the Force Majeure with reasonably full particulars concerning it. Thereupon the obligations of the Party giving notice, so far as they are affected by the Force Majeure, shall be suspended during, but no longer than, the continuance of the Force Majeure. The affected Party shall use all reasonable diligence to remove the Force Majeure as quickly as possible. The term “Force Majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, failure of Internet Collocation Facilities or other Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the Party claiming suspension.
(13) General Provisions. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. The provisions of this Agreement are severable and the unenforceability of any provision shall not affect the validity or enforceability of such other provisions. Customer may not assign this Agreement except with the Developer’s prior written approval. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. Any claims relating to this Agreement shall be brought in state or federal courts located in Marion County, Indiana and each Party hereby consents to the exclusive personal and subject matter jurisdiction of such courts. Each Party also waives any right to jury trial in connection with this Agreement. If the Developer resorts to legal action for the redress of a breach of this Agreement, it shall be entitled to an award of all costs and reasonable attorneys’ fees. This Agreement constitutes the entire agreement between the Parties. In the event of a change in federal or state laws or regulations affecting the Application provided under the terms of this Agreement (“Uncontrollable Changes”), the Developer may make changes this Agreement relating to such Uncontrollable Changes upon reasonable written notice to Customer and without liability of any kind or nature to Customer. No other modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Developer. Electronic transmissions of signatures shall be allowed hereunder and shall be effective as delivery of a manually executed signature page of this Agreement. No action under this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.