“Billing Period” means the interval of time for which you are invoiced, as determined by the billing frequency set forth in the applicable Software Service Agreement;
“Content” means the audio and visual information, documents, software, products, services, and other information contained within, or made available to you in the course of using, the Services;
“Contract Start Date” means the later of (i) the date of the last signature on an applicable Software Service Agreement, or (ii) the date provided in the Contract Start Date field in an applicable Software Service Agreement;
“Customer Data” means any data, information or material provided, submitted, or made available by you to the Services in the course of using the Services;
“Effective Date” means the date defined as the “Effective Date” in the Software Service Agreement and if not defined in the Software Service Agreement, the date of the Software Service Agreement;
“ExecVision Technology” means all of ExecVision’s proprietary technology (including software, mobile app(s), hardware, products, processes, algorithms, user and programming interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), made available to you or otherwise used by ExecVision in providing the Services;
“Intellectual Property Rights” means rights in and to inventions (whether or not patentable), patent applications, patents, design rights, rights in and to software code and other works of authorship including copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secret rights, and all other intellectual property rights and forms of protection of a similar nature anywhere in the world;
“Integration Services” means the ExecVision’s process of extracting certain defined data from third-party web sites and/or data sources that you control and to which ExecVision is authorized to access by utilizing usernames and passwords provided by you. The extracted data is made available to you in the ExecVision Technology.
“Non-ExecVision Applications” means web-based or offline hardware or software applications that are provided by you or a third party and interoperate with a Service;
“Party” or “Parties” mean(s) either ExecVision or you, or both, as appropriate;
“Services” means the ExecVision call review Software as a Service (SaaS) platform; ExecVision’s CRM integration; dialer/telephony system recording integration; screen sharing recording integration; call transcription services; ExecVision library of calls; manager and representative user training services; customized keyword display; customized scorecards; related third-party services, or other services identified on the Software Service Agreement(s) as services to which you will have access during the Term, and any ancillary service rendered to you by ExecVision, to which you are being granted access under this Agreement; “Services” shall exclude Non-ExecVision Services;
“Software Service Agreement(s) or SSA” means any form evidencing your subscription for the Services that you submit in written form and which is accepted by ExecVision, specifying, among other things, (1) the Services and other deliverables contracted for, (2) the applicable Fees and other charges, (3) the Billing Period, and (4) other terms and conditions as may be agreed upon between the Parties in writing, each such Software Service Agreement to be incorporated into and to become a part of this Agreement;
“Term” means the period during which a specified number of Users are permitted to use the Services as set out in the relevant Software Service Agreement(s) made up of an Initial Term and any Renewal Term(s);
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied with individual access credentials by you or by ExecVision at your request.
2.1 Provision of the Services. The Services are purchased as subscriptions. During the Term, we will (a) make the Services available to you pursuant to this Agreement and the applicable Software Service Agreements, and (b) use commercially reasonable efforts to provide the Services for remote electronic access and use by you and your Users.
2.2 Usage Restrictions. You will not, directly or indirectly, (1) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or other underlying ExecVision Technology; (2) modify, copy, reproduce, display to third parties, translate, or create derivative works based on (i) the Services or (ii) any ExecVision Technology; (3) rent, lease, distribute, sell, resell, assign, or otherwise purport to transfer rights to the Services or any ExecVision Technology; (4) use the Services or any ExecVision Technology for timesharing or service bureau purposes or otherwise for the benefit of any third party; (5) remove any proprietary notices from the Services or any ExecVision Technology; (6) publish or disclose to third parties any evaluation of the Services or any ExecVision Technology without ExecVision’s prior consent, unless you have first provided ExecVision with notice of your intent to do so; (7) create any link to the Services or frame or mirror any Content contained on, or accessible from, the Services, without ExecVision ‘s prior written consent; (8) authorize, permit, or otherwise allow more than the specified number of authorized Users on the Software Service Agreements to access the Services; or (9) use ExecVision Technology in any manner or for any other purpose other than as expressly permitted by this Agreement.
2.3 Integration with Non-ExecVision Applications. The Services may contain features designed to interoperate with Non-ExecVision Applications. To use such features, you may be required to obtain access to Non-ExecVision Applications from their providers, and may be required to grant ExecVision access to your account(s) on the Non-ExecVision Applications. If the provider of a Non-ExecVision Application ceases to make the Non-ExecVision Application available for interoperation with the corresponding Service features on reasonable terms, ExecVision may cease providing those Service features without entitling you to any refund, credit, or other compensation.
3.1 Resources. You are responsible for obtaining and maintaining all computer hardware, software, communications equipment, facilities and equipment needed to access the Services, and for paying all third-party access charges (e.g., charges of Internet, telecommunications service providers, CRM service providers) incurred in connection with using the Services.
3.2 Your Responsibilities. You are solely responsible for your actions and the actions of your Users (and any of your other employees or agents) while using the Services and the contents of any Customer Data and other information or materials that may be stored or transmitted through your use of the Services. You agree: (1) to abide by all local, state, national, and international laws and regulations applicable to your use of the Services, including the laws and regulations of any country, and including without limitation all laws regarding the transmission of promotional communications and the collection of personal data by or through the Services; (2) not to upload or distribute in any way files that contain viruses, corrupted files, or any other software code that may damage the operation of the Services or any other computers or facilities; (3) not to interfere with or disrupt networks or facilities used in providing, or that are connected to, the Services; (4) not to post, promote or transmit through the Services any material that is unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (5) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (6) not to interfere with any other customer’s use and enjoyment of the Services or any another person or entity’s use and enjoyment of services provided by ExecVision or any third party; and (7) to comply with all regulations, policies and procedures of networks connected to the Services. You acknowledge that the laws and regulations governing the use of the Services may change from time to time. You acknowledge and agree that ExecVision neither endorses the contents of any of its customers’ communications, nor assumes any responsibility for the time, place, manner, or contents of any such communications or Customer Data. You further acknowledge and agree that ExecVision has the right, but not the obligation, to implement mechanisms to screen, monitor, modify, and remove any Customer Data or other content posted or stored on the Services or transmitted through the Services, at any time, which violates this Agreement, without notice.
3.3 Customer Support. Support Services includes customer support in the form of self-administered help notes at any and all websites operated by ExecVision. Basic email and telephone support through ExecVision’s customer service department is available with the purchase of one or more of ExecVision’s packages of implementation and training Services. ExecVision does not provide support for integrations between the Service and third party applications unless otherwise expressly agreed between the Parties in writing.
3.4 Use of Integration Services. You authorize ExecVision to act as your agent, and on your behalf, to perform Integration Services to extract certain data from third-party sources, sites and databases to incorporate the extracted data in the ExecVision Technology. Extraction sources may include, but are not limited to, providers of telephony services, phone dialers, screen sharing tools, providers of Customer Relationship Management Systems, and the like.
4.1 Fees. You will pay all Fees and other charges described and otherwise referenced in this Agreement and the Software Service Agreement(s) (“Fees”), annually in advance, net 15. You are responsible for paying for all Fees for Services agreed to for the entire Term, whether or not such Services are actively used or accessed. Service begins on receipt of payment as agreed to in the SSA. The quantity of Users cannot be decreased during the Term. The quantity of Users may only be decreased on the Contract Start Date of the next Renewal Subscription Term.
4.2 Adding/Transferring Users and Services. You may add subscriptions for additional Users by executing an additional written Software Service Agreement. Added Users/Services will be subject to the following: (1) added Services will be coterminous with the then existing Term; (2) the Fee for the added User/Service will be the Fee in the applicable Software Service Agreement; and (3) User/Services added will be charged pro-rata for the days remaining in the then-existing Term in which they are added.
4.3 Billing Errors. You must contact ExecVision in writing no later than 30 days after the date of the applicable invoice to report a billing error. If an error notice is not received within 30 days of the date of the invoice, you waive any right to an adjustment or credit and agree to pay the amount billed.
4.4 Refund Policy. All transactions between you and ExecVision are final. ExecVision does not issue refunds for transactions or Services that have been paid for by you, except as otherwise provided.
4.5 Taxes. All Fees are exclusive of applicable state, federal, national, withholding and VAT taxes, and applicable customs duties or tariffs (collectively “Taxes”). You will be responsible for the payment of all Taxes applicable to the Services provided under this Agreement, except for taxes based on ExecVision’s income, property and employees. If ExecVision has the legal obligation to pay or collect Taxes for which you are responsible, the appropriate amount will be invoiced to you for payment, unless you provide to ExecVision a valid tax exemption certificate authorized by the appropriate taxing authority.
4.6 Account Audit. ExecVision reserves the right to audit and review Customer’s ExecVision account(s) at any time to confirm that Customer’s usage of the Service is in accordance with the terms of this Agreement and any applicable Software Service Agreement(s) placed hereunder. ExecVision shall invoice Customer for any usage of the Services that exceeds the agreed upon usage set forth in the applicable Software Service Agreement(s).
5.1 Term. This Agreement commences on the Effective Date and will continue until all User subscriptions granted in accordance with this Agreement have expired or been terminated. The Initial Subscription Term commences on the Contract Start Date and continues for the Term specified therein at which time ExecVision may change pricing at its sole discretion (the “Initial Term”). Upon the expiry of the Initial Term, this Agreement will automatically renew for successive Renewal Subscription Terms equal to one year in duration, (each, a “Renewal Term”) unless written notice is provided to ExecVision at least thirty (30) days prior to the completion of the Initial Term, or any subsequent Renewal Term, stating that you do not wish to renew the Subscription Term. Subscription Fees for any Renewal Term will be equal to the then-current number of total User subscriptions multiplied by the User subscription Fee in effect between the parties at the time of renewal, or as specified by ExecVision at the time of renewal. Renewal Fees for other services will be charged on an as-quoted basis. The Initial Term and any and all Renewal Term(s), if any, constitute the “Subscription Term.”
5.2 Termination or Suspension for Cause. Either party may terminate this Agreement for cause: (1) upon 30 days written notice to the other party for a material breach if such breach is capable of cure and remains uncured on expiry of such 30 days’ notice; or (2) 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. If you terminate for cause, you will receive a refund of any prepaid Fees for any time period after its termination date.
5.3 Effect of Termination. Section 2.2 (Usage Restrictions), Section 4 (Fees and Payment), Section 5.3 (Effect of Termination), Section 6 (Proprietary Rights), Section 7 (Confidentiality, Privacy, and Publicity), Section 8 (Warranties and Disclaimer), Section 9 (Indemnification), Section 10 (Limitations of Liability), and Section 11 (General) will survive any termination or expiration of this Agreement. In no event will any termination or expiration of this Agreement relieve you or ExecVision of any obligations or liability accrued prior to termination including, without limitation, the obligation to pay any Fees payable to ExecVision.
6.1 Intellectual Property Ownership. ExecVision (and its licensors, where applicable) will exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Services, the ExecVision Technology, and any modifications thereto or derivative works thereof. Further, ExecVision will exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Services or ExecVision Technology (the “Feedback”). You hereby assign, and agree to assign, any and all right, title, and interest, including all related Intellectual Property Rights, in and to the Feedback and any modifications to, or derivative works of, the Services and the ExecVision Technology. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the ExecVision Technology or the Intellectual Property Rights owned by ExecVision or its licensors, where applicable. The ExecVision name, the ExecVision logo, and the product names associated with the Services are trademarks of ExecVision or third parties, and no right or license is granted to use them. Other trademarks, logos, and trade names that may appear on the Services are the property of their respective owners. ExecVision reserves to itself all rights in and to the Services and ExecVision Technology not expressly granted to you in accordance with this Agreement.
6.2 Customer Data and Account Information. You will retain all ownership of Customer Data that you submit to the Services in the course of this Agreement. You, not ExecVision, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all Customer Data. You will ensure that you and ExecVision have the right to use Customer Data as contemplated by this Agreement, and you hereby grant, and agree to grant, ExecVision the right to use all Customer Data for the purposes set forth in this Agreement. ExecVision will take commercially reasonable measures to protect Customer Data on the Services. However, ExecVision is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Data. Except as permitted in this Agreement, ExecVision will not willfully (1) edit or delete Customer Data unless (a) authorized by you, (b) ExecVision is required to do so by law, or (c) in the good faith belief that such action is necessary to: (i) conform with applicable laws or comply with legal process served on ExecVision, (ii) protect and defend the rights or property of ExecVision, or (iii) enforce this Agreement; or (2) disclose Customer Data unless (a) authorized by you, (b) ExecVision is required to do so by law, or (c) in the good faith belief that such action is necessary to conform with applicable laws or comply with legal process served on ExecVision. You grant to ExecVision an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and display Customer Data and User statistical information such as usage, traffic patterns, or User activities; provided that such Customer Data will be (A) de-identified such that no person or entity (including but not limited to Customer) can be identified, and (B) combined with the data of other customers or additional data sources (“Anonymized Data”). ExecVision may access Customer Data to service or respond to technical issues with the Services.
means any information that is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified by the disclosing party as confidential or proprietary or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, Customer Data, trade secrets, patented or copyrighted information, computer programs, software, user interfaces, software documentation and/or specifications, formulas, data, inventions, algorithms, techniques, processes, marketing plans, strategies, business models, forecasts, training materials, and third-party confidential information. “Confidential Information” does not include any information that the receiving party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a third party authorized to make such a disclosure, without breach of the terms and conditions of this Agreement; (c) independently developed by the receiving party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing party; or (f) disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
Under no circumstances may either party disclose any pricing or business terms related specifically to this Agreement, or any negotiations thereof, to any third party (including, but not limited to, competitors, other ExecVision customers or prospects, industry analysts, press or media).
Neither party will use any Confidential Information of the disclosing party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party is allowed to disclose the other party’s Confidential Information to any person or entity other than the receiving party’s officers, employees, consultants and legal advisors who need access to such Confidential Information to effect the intent of the Agreement except as required by law or legal process. Each individual or entity receiving Confidential Information pursuant to this subsection must have entered into a written confidentiality agreement the sole objectives of which are to further the intent of this Section. Each party agrees to notify the other of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
(2) Passwords. ExecVision will issue to you, or shall authorize a User to issue, a password for each User authorized to use your account for whom you have paid the applicable Fees. You and your Users must maintain the confidentiality of all passwords and ensure that each password is used only by the unique authorized User to whom such password is assigned. You are entirely responsible for any and all activities that occur under your account. You agree to promptly notify ExecVision of any unauthorized use of your account (including any unauthorized use of any password of any User accessing the Services by means of your account) or any other breach of security known to you.
(3) Security. ExecVision will maintain the ExecVision Technology used to provide the Services at third party colocation, hosting, and telecommunication facilities, where they are subject to commercially reasonable security precautions to prevent unauthorized access to the Services. You acknowledge that, notwithstanding such security precautions, unauthorized third parties may gain access to the Services and to any or all Customer Data. Accordingly, ExecVision cannot and does not guarantee the privacy, security, or integrity of any Customer Data or of any other data transmitted by or through the Services.
7.3 Publicity. ExecVision may use your name and logo as part of a list of customers and may refer to you as a user of its Services in its advertising and marketing activities. Each Party shall obtain the other Party’s permission prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Services, will be prepared jointly between ExecVision and you and will be issued only upon mutual agreement of the Parties.
8.1 Mutual Warranties. Each Party represents and warrants that (1) it has the legal right, power and authority to enter into this Agreement and to perform all of its obligations under this Agreement, and (2) its entrance into this Agreement does not violate any agreement between such Party and any third party.
8.2 Disclaimer. EXECVISION AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. EXECVISION AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA, (2) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED CUSTOMER DATA WILL BE SECURE, COMPLETE, TIMELY, ACCURATE OR RELIABLE, (4) THE QUALITY OF THE SERVICES OR ANY OTHER INFORMATION, ITEMS, OR MATERIALS OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (5) ERRORS OR DEFECTS WILL BE CORRECTED, OR (6) THE SERVICES, THE CONTENT, OR THE EQUIPMENT OR FACILITIES USED TO MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UNLESS OTHERWISE PROVIDED HEREIN, THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY EXECVISION AND ITS LICENSORS. NO ADVICE, INFORMATION OR ACTION FROM EXECVISION OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.3 ExecVision Warranties. ExecVision warrants that: (1) the Services will perform substantially in accordance with the applicable documentation, and (2) it will abide by all local, state, national, and international laws and regulations applicable to the use or provision of the Services (as applicable).
8.4 Communications Delays and Outages. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, OUTAGES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELEPHONY, AND ELECTRONIC COMMUNICATIONS. EXECVISION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.1 Indemnification of ExecVision. You, including any of your parent organizations, subsidiaries, and other affiliates, will indemnify, defend, and hold harmless ExecVision, its parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with (1) any claim alleging that transmission, storage, or other use of Customer Data infringes the rights of, or has caused harm to, a third party; or (2) a claim alleging or based upon any facts that, if true, would constitute a breach by you of any of provision of this Agreement.
9.2 Infringement Indemnification. Subject to the limitations set forth in Section 9.3, ExecVision agrees to indemnify, defend and hold harmless you, your parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents, against any action to the extent that such action is based upon a claim that the Services provided by ExecVision, or any part thereof, infringes upon the intellectual property rights of any third party.
9.3 Procedures. All indemnification obligations under this Section 9 shall be subject to the following requirements: (a) the indemnified party shall provide the indemnifying party with prompt written notice of any claim; (b) the indemnified party shall permit the indemnifying party to assume and control the defense of any action upon the indemnifying party’s written acknowledgment of the obligation to indemnify (unless, in the opinion of counsel of the indemnified party, such assumption would result in a material conflict of interest); and (c) the indemnifying party shall not enter into any settlement or compromise of any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld. In addition, the indemnified party may, at its own expense, participate in its defense of any claim. In the event that the indemnifying party assumes the defense of any such claim, the indemnifying party shall have no liability for attorney’s fees and costs incurred by the indemnified party.
10.1 Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE TOTAL AMOUNT ANNUAL LICENSE FEES PAID TO EXECVISION BY YOU FOR THE TWELEVE-MONTH PERIOD IN WHICH THE CAUSE OF ACTION OCCURRED.
10.2 Disclaimer of Consequential and other Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Exclusion. Notwithstanding the foregoing, the limitation provisions of Sections 10.1 (Limitation of Liability) and 10.2 (Disclaimer of Consequential and other Indirect Damages) shall not apply to any claim or action arising under (1) ExecVision’s breach of confidentiality under Section 7 of this Agreement, and (2) the Infringement Indemnification provision under Section 9.2 of this Agreement.
11.1 Notices. All notices required under this Agreement will be in writing and sent to the addresses specified in this Agreement and will be sent by Certified Mail, Return Receipt Requested, or by express courier service, having trackable service, and with signature required by the receiving Party. Notwithstanding the foregoing, you acknowledge and agree that ExecVision may provide you with notices by email, regular mail, or postings on the Services. Any such notices will be deemed given the day they are displayed on the Services.
11.2 Entire Agreement. This Agreement, including all corresponding Software Services Agreements and exhibits where applicable, contain the entire agreement of the Parties and supersedes any and all prior and contemporaneous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement supersedes any terms printed on your Software Services Agreements or other communications. In the event of any conflict between these Terms of Service and the terms of the Software Services Agreements, the terms of the Software Services Agreements will govern, but solely to the extent of the conflict.
11.3 Assignment. You may not assign your rights or obligations under this Agreement without the prior written consent of ExecVision, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, you may assign this Agreement to an entity who acquires substantially all of your stock or assets. All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
11.4 Relationship of the Parties. The Parties expressly agree that they are independent contractors and do not intend for this Agreement to be interpreted as an employment agency, joint venture, or partnership relationship.
11.5 Employment Solicitation. For the duration of this Agreement, and for a period of 1 year following termination of this Agreement, (1) you agree not to solicit the employment of any employee of ExecVision, and (2) if you are approached by an employee of ExecVision concerning employment, you agree to notify ExecVision at least 30 days prior to making an offer of employment to such employee.
11.6 Injunctive Relief. Actual or threatened breach of Section 2 (Services), Section 3 (Use of Services), Section 6 (Proprietary Rights), or Section 7 (Confidentiality, Privacy, and Publicity) may cause immediate, irreparable harm that would be difficult to calculate and could not be remedied by payment of damages alone. Accordingly, each Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
11.7 Governing Law & Venue. This Agreement and any disputes arising hereunder shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Virginia, without regard to its conflict of laws principles. Any dispute under this Agreement shall be brought exclusively in the state and federal courts within the State of Virginia. Each Party hereby irrevocably consents and submits to the exclusive jurisdiction of such courts. Each Party specifically waives any right to trial by jury in any court in connection with any action or litigation. Any cause of action arising out of or related to this Agreement must be brought within one (1) year after the cause of action arose; otherwise, such cause of action will be permanently barred.
11.8 No Third-Party Beneficiaries. This Agreement is made for the benefit of ExecVision and you, and not for the benefit of any third parties. No other person or entity will be a third-party beneficiary to this Agreement.
11.9 Export Controls. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (1) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (2) you shall not permit any Users to access or use any Services in violation of any U.S. export embargo, prohibition, or restriction.
11.10 Headings and Numbering. Paragraph headings and numbers used in this Agreement are included for convenience of reference only, and, if there is any conflict between any such numbers and headings, and the text of the Agreement, the text shall control.
11.11 No Waiver. No failure to exercise or enforce any right or provision of this Agreement, nor any waiver of any default or breach of this Agreement by either Party will be deemed to imply or constitute a waiver of any other default or breach of this Agreement by either Party, whether of a similar nature or otherwise.
11.12 Severability. In the event that one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the provision will 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 enforceability of remaining provisions will be unimpaired.
11.13 Modification to Terms. No modification, amendment, supplement to or waiver of this Agreement shall be binding upon the Parties hereto unless made in writing and duly signed by both Parties.
11.14 Force Majeure. Neither Party will be in default of any obligation under this Agreement (other than payment obligations) to the extent that its failure to perform is caused solely by conditions beyond that Party’s reasonable control, such as acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks not attributable to ExecVision’s breach of this Agreement, acts of terrorism or governmental demands or requirements that prevent or prohibit ExecVision from providing Services.