This Licensing Agreement and the Order Form (this “Agreement”) starts on the Start Date defined below and is entered into by the client identified as such in the Order Form ("the Client"); ActiveOps USA Inc. (ActiveOps"); The Client and ActiveOps shall each be referred to as a “Party” and together as the “Parties.”
This Agreement governs the Client's access to and use of the on-premises parts of the suite known as Workware+, including but not limited to WorkiQ and ConnectiQ (“the Products”)
“Client Data” means the data, including time data, inputted by Client or its End Users, or ActiveOps on the Client’s behalf, for the purpose of using the Services or facilitating the Client’s use of the Services.
“Confidential Information” means any information, data, databases, material, or know-how (whether commercial, technical, financial, operational or otherwise, whether communicated verbally, in writing or in any other form and whether or not expressly stated to be confidential) relating to a Party (including but not limited to) its business plans, intellectual property, products, services, clients, customers, employees, documents, software, developments, inventions, processes, designs, drawings, engineering, marketing, product pricing or financial information of the disclosing Party.
“Credentials” means URL(s), user names and passwords provided by ActiveOps to the Client to facilitate access to the Services.
"Data Protection Legislation" the applicable laws and regulations from time to time in force relating to data protection, privacy and the processing of personal data under the laws of Delaware;
"Documentation" means any manuals, instructions or other documents or materials that are provided or made available to the Client by ActiveOps in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, implementation, configuration, integration, operation, use, support or maintenance of the Services, together with all updates and modifications of such documents and materials.
"Disclosing Party" means the Party disclosing Confidential Information and/or to whom Confidential Information relates.
"End User" means individual named users of the Services employed by or contracted to the Client, specified in the Order Form.
“Fees” means the fees set out in the Order Form.
“Force Majeure Event” means circumstances beyond a Party’s reasonable control and which causes a delay in that Party performing or failure of that Party to perform any of its obligations under this Agreement including an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving ActiveOps), failure or delay of any Internet service provider or other communication provider, non-ActiveOps software application error, power failure or explosion, fault or failure of any plant or equipment, or denial of service attack.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorised access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent the Client and/or any End User from accessing or using the Services as intended by this Agreement.
“Initial Term” shall have the meaning set out in the Order Form.
“Intellectual Property Rights” means all patents, trade marks, service marks, designs, copyright, database rights, inventions, trade secrets and other confidential information, know-how, business names and all other intellectual property rights of a similar nature in any part of the world, whether registered, registerable or not and including all applications and the right to apply for any of the foregoing rights and the right to sue for past infringements of any of the foregoing rights.
“Law” means any statute, by-law, directive, treaty, regulation or court judgement, and any rule or policy issued by any regulatory authority.
"Order Form" means the order form to which this Licensing Agreement is attached and which forms part of and is incorporated into the Agreement.
"Our Systems" means the information technology infrastructure used by ActiveOps or on their behalf in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks.
"Permitted Recipients" means a director, employee, sub-contractor or professional advisor of the Receiving Party who has a legitimate need to receive and consider particular Confidential Information for the purposes of the Receiving Party exercising its rights and/or performing its obligations under this Agreement.
"Personal Data" means any personal data (within the meaning set out in the Data Protection Legislation in force from time to time) that is processed by ActiveOps in connection with this Agreement or the Services, including:
a) personal data provided to ActiveOps relating to the Client's directors, officers, employees, contractors, consultants, agents, contacts and other personnel;
b) personal data relating to End Users; and
c) any personal data contained within the Client Data.
“Product” means one or more of the the Products, which are installed on the Client’s infrastructure and servers, including any code or application which results from the Services
"Receiving Party" means the party receiving Confidential Information from or relating to the Disclosing Party.
“Renewal Term” shall have the meaning set forth in Section 3.1.
“Safeguards” means administrative, physical, and technical safeguards that reasonably and appropriately protect the security, confidentiality, and integrity of Client Data from unauthorised and accidental access, disclosure, destruction and loss in accordance with the ActiveOps Policy.
“Services” means the provision of the services described in this Agreement which is delivered or otherwise made accessible by ActiveOps to the Client through Our Systems and other electronic means, that is owned by ActiveOps, together with all modifications, corrections, improvements or enhancements.
“Service Level Agreement” means the service levels which ActiveOps’ support team publish in respect of resolution and response targets for support tickets. ActiveOps shall have the right to amend these Service Level Agreements from time to time provided that those changes do not have a material detrimental impact on the functionality of the Product or Services when compared to the Product or Services available on the Start Date. A description of the Service Levels in force at any point in time is available upon request from the Support team.
"Start Date" means the date identified as such in the Order Form.
“Term” shall have the meaning set forth in Section 3.1.
“Territory” means United States of America.
"ActiveOps Privacy Notice" means ActiveOps' privacy notice set out at www.activeops.com/privacy
For purposes of this Agreement, the following terms will have the following meanings:
1.1 In this Agreement, unless the context otherwise requires: any reference to any legislation or legislative provision shall be construed as a reference to that legislation or provision as amended, re-enacted or extended at the relevant time; any reference to a person shall be construed as a reference to any person, corporate entity, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or one or more of the foregoing; any reference to the singular shall include the plural and vice versa; any phrase introduced by the terms include, including, particularly or in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2 This Agreement is in addition to any terms of business or other agreement entered into between ActiveOps the Client. This Agreement includes the only terms that apply to the provision and use of the Services.
2 Products and Services
2.1 Grant of Licence. During the Term, and upon payment of the Fees, ActiveOps grants to the Client a non-exclusive licence to use the Product specified in the Order Form for the Term, and access to the Services and the Documentation for use in the Territory.
2.2 Usage Restrictions. ActiveOps will provide access to the Products by distributing licence keys to the Client’s authorized IT contact, or by other equivalent method. ActiveOps will provide access to the Services outlined in the Order Form in the manner and at the time specified in the Statement of Work accompanying the Order Form in exchange for the Fees. The Client will not: use the Products or Services to store or transmit unlawful, injurious, infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; use the Products or Services to contain, store, transmit or activate Harmful Code; use the Products or Services, or allow any End Users to use the Products Services, outside of the Territory; intentionally interfere with, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Products or Services, including the provision of any Products or Services by ActiveOps to third parties; use the Products or Services to access or use any of Intellectual Property Rights of ActiveOps except as permitted under this Agreement; copy, frame, or mirror any part of the Products or Services, except for the purposes of legitimate disaster recovery or business continuity purposes, such usage to be limited to that reasonably required to ensure continuity of service during an outage or failure to the Client’s systems, or allow any third party, not being one of the Client's employees or independent contractors engaged to provide services to the Client; access or use the Products or Services for purposes of competitive analysis thereof, the development, provision or use of a competing software service or product or any other purpose that is to ActiveOps' detriment or commercial disadvantage; reverse engineer, disassemble, decompile, decode, adopt modify, create derivative works or improvements of, or otherwise attempt to derive or gain access to the source code of the Products; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Products or Services, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; bypass or breach any security device or protection used by any Products or Services or access or use the Products or Services other than by an End User through the use of valid Credentials; remove, delete, alter or obscure any warranties or disclaimers, or any copyright, trade mark, patent or other intellectual property or proprietary rights notices from any Product, Services or Documentation, including any copy of such items; or access or use the Product or Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorised access to, misappropriation, use, alteration, destruction or disclosure of the data of any other ActiveOps customer), or that violates any applicable Law.
2.3 The Client's responsibilities.
End User responsibilities. The Client will (a) ensure that its End Users comply with the obligations of and restrictions on the Client set out in this Agreement as if the End Users were a party to this Agreement; (b) be responsible for the accuracy, quality, and legality of the Client Data and the means by which it acquires and uses the Client Data; (c) use its best efforts to safeguard Credentials to prevent unauthorised access to the Products or Services, and notify ActiveOps immediately of any unauthorised access or use of its Credentials of which it becomes aware; and (d) use the Products and Services only in accordance with this Agreement, the Documentation and applicable Laws.
System Responsibilities. The Client will ensure that its systems and infrastructure are appropriately sized, managed and maintained to host the Products, and that adequate IT skills are available to operate and support the Products during the Term. The Client will ensure that its End Users are provided with appropriate computing facilities, including where applicable, the use of applications and versions which are supported by the Products. ActiveOps will not have any liability to the Client as a result of any failure, interruption or error of the Products or Services arising out of or in connection with any failure of the Client to maintain those minimum system requirements during the Term.
2.4 Requests to Delete the Client's Data. From time to time, the Client may, by written request to ActiveOps, require ActiveOps to delete and destroy the Client Data that is stored in Our Systems so that such the Client Data is irretrievable, except to the extent such deletion or destruction is legally prohibited (such as pursuant to a litigation) or necessary to provide the Services to the Client or otherwise perform the obligations or exercise the rights of ActiveOps under this Agreement or under applicable Laws. ActiveOps will, within thirty (30) days after the Client's written request, provide to the Client written certification that it has complied with their obligations under this Section 2.4.
2.5 Changes to the Services. ActiveOps may make changes to the Product or Services at any time during the Term, provided that those changes do not have a material detrimental impact on the functionality of the Product or Services when compared to the Product or Services available on the Start Date.
3 Term.
3.1 This Agreement commences on the Start Date and will continue for the Initial Term, unless earlier terminated by ActiveOps or the Client in accordance with the terms of this Agreement. The Client may terminate this Agreement with effect from the first anniversary of the Start Date by serving ActiveOps with not less than 30 days prior written notice of termination, such notice to expire no later than the first anniversary of the Start Date. If no such termination notice is received by ActiveOps on or before the first anniversary of the Start Date this Agreement will continue for the balance of the Initial Term. At the end of the Initial Term, this Agreement will automatically renew for additional 12-month term(s) (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either the Client or ActiveOps gives written notice of non-renewal no later than thirty (30) days prior to the end of the then-current Term.
4 Fees.
4.1 Fees. In consideration of provision of the Product and Services the Client shall pay the Fees set out in the Order Form to ActiveOps. The License Fee stated in the Order Form is payable in respect of each 12 month period during the Term, commencing on the Start Date.
4.2 Services. ActiveOps will perform a scoping exercise prior to commencing any services and where possible prior to the signing of the Order Form, and shall provide a Statement of Work describing the Services which will be provided during the implementation and at subsequent points. Where it is not possible to perform this scoping exercise prior to the Order Form being signed, ActiveOps will provide an estimate based on their understanding of the work to be performed on the Order Form. This estimate will be identified as such on the Order Form and ActiveOps shall have the right to substitute a new Statement of Work and vary the Fees in respect of services once the scoping exercise has been completed. The Client accepts and agrees to pay such Fees as are identified in this revised Statement of Work in such cases.
4.3 Fee Adjustments. ActiveOps may, upon written notice to the Client no less than sixty (60) days prior to the end of the then-current Term, increase the Fees for the next succeeding Renewal Term, and the Client will be obliged to pay those increased Fees unless the Client terminates this Agreement by giving ActiveOps not less than 30 days written notice, such notice to expire no later than the end of the then-current Term.
4.4 Payment Terms and Invoice Frequency. The Client will pay the Fees on the due dates set out in the Order Form. ActiveOps may invoice for the Fees on or before those due dates.
4.5 No Refunds. Except as otherwise stated in this Agreement, all Fees are non-refundable.
4.6 Taxes. Fees do not include any applicable GST, sales, use or other similar taxes imposed by governmental authorities applicable to the Client's use of the Services, all of which will be invoiced by ActiveOps and are the Client's responsibility. All applicable taxes will be payable to ActiveOps in addition to the Fees set out in the Order Form.
4.7 Late payment. If the Client defaults in the payment when due of any sum payable under this Agreement the liability of the Client shall be increased to include interest on such sum from the date when such payment was due until the date of actual payment in cleared funds at a rate of 4% above the base rate from time to time of Bank of America. Such interest shall accrue from day to day and shall be compounded annually.
5 Representations and Warranties.
5.1 Representations from all Parties. Each Party represents that (a) it has full right and authority to enter into, execute, deliver and perform its obligations under this Agreement and all corporate actions necessary to enter into and perform this Agreement have been taken and (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such Party in accordance with its terms, subject to bankruptcy, insolvency, creditors’ rights and general equitable principles.
5.2 Disclaimer of All Other Warranties. Except as expressly provided in this Section 5, the parties do not make any other warranty of any kind, whether express, implied statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
6 Indemnities
6.1 Indemnity from ActiveOps. Subject to Section 6.2, Sections 11.1 and 11.2, ActiveOps will indemnify the Client against any damages, fines, and reasonable legal fees and costs finally awarded against the Client by a court of competent jurisdiction, or for amounts paid by the Client to a third party under a settlement approved by ActiveOps in advance in writing for any claim, demand, suit, or proceeding made or brought against the Client by a third party alleging that the Services infringes the Intellectual Property Rights in the Territory of any third party.
6.2 Conditions to ActiveOps indemnities. The obligations to indemnify in Sections 6.1 are subject to the Client (a) promptly giving written notice of the applicable claim to ActiveOps, (b) giving ActiveOps sole control of the defence and settlement of such claim, and (c) giving ActiveOps all reasonable assistance in such defence and settlement, at the expense of ActiveOps. If ActiveOps receives information about an alleged claim that may be covered by the indemnities in Sections 6.1 ActiveOps may, in its discretion and at no cost to the Client (i) cause the Services to be modified so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for the Client's continued use of the Services in accordance with this Agreement, or (iii) if neither (i) nor (ii) can be achieved after using commercially reasonable efforts, terminate this Agreement upon thirty (30) days’ prior written notice and refund the Client any prepaid Fees covering the unexpired portion of the Term. In no event will ActiveOps have any obligations under this Agreement or any liability for any claim that may be covered by the indemnities in Sections 6.1 to the extent the claim is caused or contributed by: (i) the combination or use of the Services with other software, services, or data, if such claim or action would have been avoided by the non-combined or exclusive use of the Services, (ii) modification of the Services by anyone other than ActiveOps if such claim or action would have been avoided by use of the unmodified Services, (iii) the continued allegedly infringing activity after being provided modifications that would have avoided the alleged infringement, (iv) the Client's use of the Services in a manner not materially in accordance with this Agreement or the Documentation, (v) Client Data or other content, documents or materials created or provided by or on behalf of the Client or (vi) use of the Services in an application or environment for which such Services were not designed or contemplated.
6.3 Indemnity from the Client. Subject to Sections 11.1 and 11.2, the Client will indemnify ActiveOps against any damages, fines, and reasonable attorneys’ fees and costs finally awarded against ActiveOps by a court of competent jurisdiction, or for amounts paid by ActiveOps to a third party under a settlement for any claim, demand, suit, or proceeding made or brought against them by a third party alleging that (i) Client Data or other content, documents or materials created or provided by or on behalf of the Client infringes the Intellectual Property Rights of any third party, and (ii) the Client's use of the Services in violation of this Agreement or applicable Law. The indemnity in this Section 6.3 is subject to ActiveOps (a) promptly giving the Client written notice of the applicable claim, (b) giving the Client sole control of the defence and settlement of the applicable claim (except that ActiveOps must consent unless such settlement unconditionally releases such party of all liability), and (c) giving the Client all reasonable assistance in such defence and settlement, at the Client's expense.
6.4 Exclusive Remedy. Section 6 states the indemnifying Party’s sole liability to, and the indemnified Party’s sole and exclusive remedy against, the other Party for any of the claims referred to.
7 Intellectual Property Ownership
7.1 Ownership of Services, Documentation and anonymised analytical data. ActiveOps own the Products, Services, Documentation and all anonymised analytical data and all Intellectual Property Rights in the Products, Services, Documentation.
7.2 Ownership and consent to use of Client Data and Client Help Text. Subject to the terms of this Agreement, the Client grants to ActiveOps a non-exclusive, royalty free license during the Term to upload, use, copy, store, transmit and display the Client Data and other content, documents or materials created or provided by or on behalf of the Client, to the extent necessary to provide the Services and perform their obligations and exercise their rights under this Agreement and for ActiveOps to conduct research and development.
8 Compliance with Laws and Anti-Corruption
8.1 Each Party must comply with all applicable Laws (including those related to the import and export of software). Client agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of ActiveOps’ personnel or agents in connection with the Client's execution of this Agreement. If the Client learns of any violation by its personnel of the anti-corruption prohibition above, it will use reasonable efforts to promptly notify ActiveOps.
9 Confidentiality
9.1 The Receiving Party undertakes to the Disclosing Party that: it shall treat and safeguard as private and confidential all Confidential Information; it shall use only use the Confidential Information to the extent that such use is necessary for the purposes of performing its obligations or exercising its rights under this Agreement; it shall not at any time disclose or reveal any part of the Confidential Information to any person other than a Permitted Recipient; it shall ensure that each Permitted Recipient to whom Confidential Information is to be disclosed is made aware of and observes the terms of this Section 9 as if that person had given the undertakings contained in this Section 9 directly; Subject to Sections 11.1 and 11.2, it shall indemnify the Disclosing Party (and keep it indemnified) from and against all costs, claims, losses, damages, expenses and other liabilities which arise out of or in connection with the unauthorised disclosure or use of the Confidential Information or any part of it by the Receiving Party or any person to whom the Confidential Information has been disclosed by the Receiving Party.
9.2 The provisions of Section 9.1 above shall not apply to any Confidential Information to the extent that such Confidential Information: is publicly available or becomes publicly available through no act or omission of the Receiving Party; was created independently by the Receiving Party as demonstrated by documentary evidence to the reasonable satisfaction of the Disclosing Party; is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority provided that (to the extent it is permitted to do so) the Receiving Party gives all reasonable notice of that disclosure to the Disclosing Party.
9.3 External firms may vet the Client's files from time to time. They are required to maintain confidentiality in relation to the Client's Confidential Information. ActiveOps may permit this unless the Client informs ActiveOps in writing to the contrary.
10 Data protection
10.1 Where ActiveOps processes Personal Data, ActiveOps will do so in its capacity as Processor, in accordance with the ActiveOps Privacy Notice and in compliance with the Data Protection Legislation. In particular, and without prejudice to the ActiveOps Privacy Notice.
10.2 Each Party agrees that, in the performance of its respective obligations under this Agreement, it shall comply with the provisions of data protection legislation to the extent applicable to the Parties in terms of this Agreement.
10.3 Accordingly, ActiveOps agrees that it shall: only carry out processing of Client’s personal data on Client’s instructions from time to time, such instructions at the date of this Agreement are to process the personal data in order to provide the Services in accordance with this Agreement; and implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and accidental destruction or loss.
10.4 Client acknowledges and agrees that ActiveOps may be required to transfer personal data which it processes on Client’s behalf to countries outside the country where the personal data originated, and Client consents thereto. ActiveOps shall ensure that any such transfer will be undertaken in accordance with the applicable data protection legislation.
10.5 Client shall: ensure it is entitled to transfer the relevant personal data to ActiveOps so that ActiveOps may lawfully use, process and transfer the personal data on the Client’s behalf; and ensure that it has all necessary consents and approvals for ActiveOps to process personal data, and ActiveOps shall have no liability where such consents and approvals have not been secured or where ActiveOps acts on Client’s instructions ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by applicable legislation.
10.6 To the extent that the processing of Client’s personal data by ActiveOps is conducted in accordance with Client’s instructions or can be considered as customary usage for the performance of Services, Client shall defend and indemnify ActiveOps from and against any and all claims, liabilities, losses and reasonable expenses incurred by or awarded against ActiveOps in connection with any third-party claim related to such processing.
11 Limitations and Exclusions of Liability
11.1 Parties' Limitation of Liability. Subject to Sections 11.1 and 11.2 The aggregate liability (inclusive of interest and legal and other costs) of each Party to each of the other Parties in respect of all claims arising under or in connection with this Agreement (whether by reason of any negligence, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, under the terms of any indemnity, or otherwise) shall not in any event exceed $3,000,000.
11.2 Exclusions of Liability. No Party shall be liable to any other Party (whether by reason of any negligence, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, under the terms of any indemnity, or otherwise) for any: loss of profits; or damage to reputation; or loss of anticipated savings; or loss of anticipated revenues; or loss of business opportunities; loss of contracts; or loss of goodwill; or loss or corruption of any data; or indirect loss, damage, cost, expense or claim whatsoever; which arises out of or in connection with this Agreement.
11.3 Nothing in this Agreement shall operate to limit or exclude the liability of any Party to another Party for any death or personal injury caused by the negligence, or for any other matter in respect of which liability cannot lawfully be limited or excluded.
12 Termination
12.1 Termination upon Breach. Failure to Pay. If the Client fails to pay when due any undisputed amount owing under this Agreement and that failure remains uncured after thirty (30) days from the date ActiveOps delivers written notice to the Client of that failure, then ActiveOps may terminate this Agreement, with immediate effect, by giving written notice to the Client. Damage to Products, Services or Our Systems. If any use of the Products or Services by the Client or End Users, in ActiveOps’ reasonable good faith judgment threatens the security, integrity, or availability of the Products or Services or Our Systems, or is in breach of the Client's or End Users' obligations under this Agreement, ActiveOps may suspend the use by the Client and End Users of the Products or Services until such time as such offending use has ceased to the reasonable satisfaction of ActiveOps and/or remove any offending Client Data. Any Other Material Breach by the Client. If the Client: commits any material breach of this Agreement (other than its obligation to pay Fees), and the material breach remains uncured after thirty (30) days from the date ActiveOps delivers written notice to the Client reasonably detailing the breach, then ActiveOps may terminate this Agreement with immediate effect by giving written notice to the Client. Any Material Breach by ActiveOps. If ActiveOps: commits any material breach of this Agreement, and the material breach remains uncured after thirty (30) days from the date the Client delivers written notice to ActiveOps reasonably detailing the breach, then the Client may terminate this Agreement with immediate effect by giving written notice to ActiveOps. Termination for insolvency. Any Party may terminate this Agreement immediately by serving written notice to that effect on the other Parties if at any time any one or more of the following events occurs to one of the other Parties: another Party makes any voluntary arrangement with its creditors or becomes bankrupt or enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or a security holder takes possession, or a receiver or administrative receiver is appointed, over all or any material part of the property or assets of another Party; or anything analogous to any of the foregoing occurs to another Party under the law of any jurisdiction; or another Party ceases to carry on business.
13 Effect of Termination.
13.1 Upon termination of this Agreement for any reason, the following will apply: Payment of Outstanding Amounts. Within 14 days of the date of termination the Client shall pay to ActiveOps all amounts outstanding as of the date of termination. Rights to use the Products and Services end. Immediately on termination or expiry of this Agreement the rights of the Client and End Users to use the Products, Services and Documentation terminate and the Client shall cease its use of the Products, Services and Documentation, decommission and certify the deletion of the installed copies of the Products (including all BCP/DR copies and availability replicas and backups of the Products) and destroy all copies of the Documentation and shall ensure that its End Users do so. Client Data Portability and Deletion.
14 General
14.1 Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties relating to its subject matter. This Agreement supersedes all previous discussions, understandings, and agreements, whether written or oral, between the Parties. No online terms, click-through agreement or electronic license agreement shall supersede, supplement or modify this Agreement.
14.2 Amendment; Counterparts. The Parties may only amend or modify this Agreement in a written document signed by both Parties. This Agreement may be executed in any number of counterparts which may be delivered as a .pdf via e-mail, and each counterpart so executed and delivered shall be deemed an original, and all of which together shall constitute one instrument.
14.3 Assignment. The Client may not assign, sub-contract or sub-licence this Agreement or any of its rights or obligations under this Agreement without the prior written consent of ActiveOps. ActiveOps may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the Client. Notwithstanding the foregoing, any Party may assign or otherwise transfer all of its rights and obligations under this Agreement in connection with a sale or other transfer of all or substantially all of such Party’s assets or equity (whether by sale of assets or stock or by merger or other reorganisation), without the prior consent of the other Parties, so long as the assigning Party provides written notice to the other Parties within thirty (30) days after such transfer.
14.4 Severability. If any part of this Agreement is declared unenforceable or invalid, such provision will be deemed severed from this Agreement and the remaining provisions will continue to be valid and enforceable.
14.5 Waiver. Any Party’s failure or neglect to enforce any of the rights under this Agreement will not be deemed to be a waiver of that Party’s rights unless that Party has executed a written waiver and then only to the extent expressly provided therein.
14.6 Notices. Form of Notice. All notices and other communications required to be given under this Agreement between the Parties must be in writing. Method of Notice. Notices must be given by (i) personal delivery, (ii) expedited overnight delivery service, (iii) first-class registered or certified mail, postage prepaid, or (iv) electronic mail, in each case to the Party's address specified above, or to the address that a Party has notified to be that Party's address for the purposes of this Section 14.6. Receipt of Notice. A notice given in accordance with this Agreement will be effective upon receipt by the Party to which it is given if given by personal delivery, courier, or electronic mail, or, if mailed, upon the earlier of receipt and the fifth business day following mailing.
14.7 Force Majeure. No Party will be liable for any failure of or delay in the performance of any of its obligations under this Agreement if its failure or delay is due to the occurrence of a Force Majeure Event. The non-performing Party will give prompt notice to the other Parties of such Force Majeure Event and the expected duration and will use commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event. If the Force Majeure Event continues for 30-days, then upon written notice any of the Parties not affected by the Force Majeure Event can terminate this Agreement immediately without liability and (where applicable) receive a refund of unused prepaid prorated Fees for the remaining License Term.
14.8 Governing Law. This Agreement and any dispute or claim, including a dispute or claim of a non-contractual nature, arising under or in connection with this Agreement shall be governed by and construed in accordance with the laws of Delaware and any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of Delaware, to which each of the Parties irrevocably submits.
14.9 Survival. Sections 5.2, 6-9, and 11-14 shall survive the termination or expiration of this Agreement.