TERMS AND CONDITIONS
1. Definitions.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Applicant” means candidates for open job postings provided to you by Mathison.
“Applicant Data” means information concerning Applicants obtained through the Service, which shall remain anonymous until the Applicant authorizes the disclosure of their contact information, at which point Mathison will provide you with the Applicant’s contact information.
“Authorized Users” means you, your employees or your authorized Affiliates, which are authorized to receive Applicant Data (i) in writing, (ii) through the Service, or (iii) by system integration or other data exchange process.
“Confidential Information” means all information, material and data (i) labeled or designated in writing as confidential or proprietary, (ii) which is verbal or otherwise intangible and the disclosing party advises the receiving party in writing after disclosure I proprietary or confidential or (iii) which, in view of the nature of such information and/or the circumstances of its disclosure the receiving party knows or reasonably should know is confidential or proprietary, including, but not limited to, software, information relating to financial data, plans, forecasts, intellectual property, methodologies, algorithms, agreements, market intelligence, technical concepts, customer information, strategic analyses and internal developments.
“Documentation” means Mathison’s electronic user guide for the Service, which may be updated by Mathison from time to time.
“Employment” means employment or contract work.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, hot fixes, changes, release notes, upgrades and changes to the Service and Documentation, as developed by Mathison and made generally available for use without a separate charge to you.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Law” means the laws of the State of Delaware.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
“Mathison” means Mathison Technologies, Inc., a Delaware corporation D/B/A Mathison.io, and its Affiliates.
“Personal Data” means any information that is related to an identified or identifiable individual and has been provided by you or your Affiliates as Subscriber Data within the Service to enable Mathison to process the data on your behalf.
“Service” means use by Mathison of Mathison’s software-as-a-service (“SaaS”) application to generate and provide you with access to Applicant Data so that you may recruit Applicants for open job postings, with the goal of providing you with a diverse pool of applicants to choose from to satisfy your employment needs.
“Subscriber Data” means the electronic data or information submitted by you or Authorized Users to the Service.
“Subscriber Input” means suggestions, enhancement requests, recommendations or other feedback provided by you and Authorized Users relating to the operation or functionality of the Service.
“Subscription Service Fees” means all amounts invoiced and payable by you for the Service, as set out in Section 2.4.
“Supported Version of the Service” means a version of the Service that is listed as a supported version of the Service in Mathison’s lifecycle policy. All versions of the Service are supported for at least 18 months after their initial release.
“Term” is as defined in Section 10.1.
“Third Party Applications” means applications licensed from third parties which connect with or interoperate with the Service.
2. Provision of Service.
2.1 Subscription Service. Mathison shall, during the Term, provide the Service to Authorized Users, subject to the terms of this Agreement.
2.2 Mathison Obligations. During the Term of this Agreement, Mathison shall: (i) make the Service available to you in accordance with the Documentation and pursuant to the terms of this Agreement; (ii) not use Subscriber Data except to provide the Service to Authorized Users, to prevent or address service or technical problems, to verify Improvements to the Service, or in accordance with this Agreement and the Documentation; (iii) maintain the anonymity of Applicants until the Applicant has authorized the sharing of their information; and (iv) not disclose Subscriber Data to anyone other than Authorized Users, in accordance with this Agreement. Mathison reserves the right to deny access to the Service to anyone at any time in the event that Mathison, in good faith, believes it is necessary for purposes of ensuring your compliance with this Agreement or to protect the rights, property, and interests of Mathison, its Affiliates, service providers and licensors. You understand that Applicants we present to you may be presented to other clients
2.3 Subscriber Obligations. You may enable access of the Service for use only by Authorized Users solely for your internal business purposes and those of your Affiliates in accordance with the terms of this Agreement and the Documentation and not for the benefit of any third parties. You are responsible for all Authorized Users use of the Service and compliance with this Agreement. You shall: (a) have sole responsibility for the evaluation, selection and for the results obtained from the Service, (b) comply with all rules and regulations relating to the Service in the Documentation or sent to you by email or other electronic means as they may be amended from time to time, (c) have sole responsibility for the accuracy, quality, and legality of all Subscriber Data, (d) be responsible for all electronic communications, including those containing business information, account registration, financial information, Subscriber Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service, (e) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, notify Mathison promptly of any such unauthorized access or use, and cooperate with and assist Mathison in identifying and preventing any unauthorized use, copying, or disclosure of the Service, the Documentation, or any portion of the Service or the Documentation, and (f) respect and maintain the confidentiality of all Applicants and Applicant Data that is not publicly-available, not use such information in any manner other than in connection with the Service hereunder, not to disclose such information publicly or to any third party without the express agreement of the underlying Applicant You shall not: (i) use the Service in violation of Law or in such a manner as is likely to harm Mathison, its Affiliates, service providers, licensors, suppliers and/or customers, (ii) use Applicant Data for any purpose other than the purpose of considering the Applicants for Employment, (iii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, (v) send or store Malicious Code in connection with the Service, (vi) interfere with or disrupt performance of the Service or the related data, (vii) attempt to breach the security of the Service, or access or attempt to access data belonging to third parties, or (viii) attempt to gain access to the Service or its related systems or networks in a manner not set forth in this Agreement or the Documentation. You shall be liable for the acts and omissions of all of your Authorized Users and Affiliates relating to this Agreement.
2.4 Charges for the Service. The Subscription Service Fee shall include an annual fee equal to the dollar amount listed on page 1 of the order form under “Service Fees”, payable on the first day of each year (the “Annual Fee”).
2.5 Use Reporting. Mathison reserves the right to gather data on usage of the Service to ensure that the Service is being used in accordance with the terms of this Agreement and the type of Service purchased by you. The Service monitors user counts, transaction volumes, resource level utilization, server IP addresses and other information. In the event (a) transaction volumes or resource level utilization of your database exceeds, for any three (3) months during the trailing twelve (12) month period, the transaction volumes or capacity, respectively, purchased by you, or (b) any other unauthorized use of the Service is discovered, it shall be considered a material breach of this Agreement. You agree not to block, electronically or otherwise, the transmission of data required for the monitoring of compliance with this Agreement. Any blocking of data required for compliance may result in immediate termination of this Agreement.
2.6 Non-Exclusive. This agreement shall not prevent Mathison from entering into similar agreements with third-parties or from independently developing, using, selling or licensing content, products or services which are similar to those provided pursuant to this Agreement.
3. Proprietary Rights.
3.1 Ownership and Reservation of Rights to Mathison Intellectual Property. Mathison and its licensors own all right, title and interest in and to the Service, Documentation, Applicant Data and other Intellectual Property Rights. Subject to the limited rights expressly granted under this Agreement, Mathison reserves all rights, title and interest in and to the Service, Documentation and Applicant Data, including all related Intellectual Property Rights. No rights are granted to you other than as expressly set forth in this Agreement.
3.2 Access to and Use of Content. You and your Affiliates have the right to access and use the Service and Documentation subject to the terms of this Agreement and the Documentation.
3.3 Restrictions. You shall not; (i) modify or copy the Service or create any derivative works based on the Service, (ii) modify or copy the Documentation or create any derivative works based on the Documentation, except for internal training purposes, (iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Users as permitted by this Agreement, (iv) reverse engineer or decompile any portion of the Service, including but not limited to, any software utilized by Mathison in the provision of the Service, (v) access the Service or Documentation in order to build any commercially available software product or service, or (vi) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
3.4 Ownership of Subscriber Data. You own all right, title and interest in and to all of your Subscriber Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Subscriber Data.
3.5 License to Host Subscriber Data and Applications. You grant Mathison and its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, store, record, transmit, display, view or otherwise use Subscriber Data, as reasonably necessary for Mathison to provide the Service in accordance with this Agreement. Subject to the limited licenses granted in this Agreement to Mathison, Mathison acquires no right, title or interest from you or your licensors under this Agreement in or to any of Subscriber Data.
3.6 Subscriber Input. Mathison shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Subscriber Input. Mathison shall have no obligation to make Subscriber Input an Improvement. You shall have no obligation to provide Subscriber Input.
3.7 Injunctive Relief. The Parties acknowledge that, in the event of a breach of any of the provisions of this Section 3, the non-breaching Party will not have an adequate remedy at law. The non-breaching Party shall, therefore, be entitled to seek an injunction against such breach from any court of competent jurisdiction immediately upon request. The non-breaching Party’s right to obtain injunctive relief shall not limit its right to seek further remedies.
4. Confidentiality.
4.1 Confidentiality. A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party’s prior written permission.
4.2 Protection. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
4.3 Compelled Disclosure. A disclosure by one Party of the Confidential Information of the other Party to the extent required by Law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure.
4.4 Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of the confidentiality protections described in this Agreement, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.
4.5 Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party. Subscriber Data shall not be subject to the exclusions set forth in this Section 4.5.
5. Subscriber Data.
5.1. Privacy and Security. Mathison has taken reasonable actions, including encryption of Subscriber Data during transmission and firewalls, to ensure that Subscriber Data is disclosed only to Authorized Users. However, you acknowledge that the Internet is an open system and Mathison cannot and does not warrant or guarantee that Subscriber Data will not be intercepted by third parties. Mathison disclaims any liability for interception of any Subscriber Data or electronic communications. Notwithstanding the first sentence in this Section 5.1, Mathison may disclose information you submitted to Mathison if required by law or in the event that Mathison, in good faith, believes disclosure is necessary to (i) comply with legal process, or (ii) protect the rights or property of Mathison, its Affiliates, licensors or others. Mathison does not sell or rent Personal Data to third parties for their marketing purposes without your explicit consent and Mathison only uses your information as described in the Privacy Statement. For more information on Mathison Privacy Statement, see the Privacy Statement posted on www.mathison.io If you object to your information being used in the manner set forth in the Privacy Statement, you should discontinue use of the Service.
5.2 Subscriber Data Upon Termination. Upon termination of this Agreement, all Subscriber Data retained by Mathison in the system database files shall be made available to you for a period of thirty (30) days after the termination of this Agreement. Thereafter, all of Subscriber Data, if retained by Mathison in the system database files, shall be made available to you only upon remittance to Mathison of a reasonable fee to cover the servicing and handling of Subscriber Data.
5.3 Use of Subscriber Data. Notwithstanding Section 5.2, it is Mathison’s practice to make backup copies of the Subscriber Data. You acknowledge and agree that Mathison may store and maintain Subscriber Data for such period of time as it deems necessary. Subject to the terms and conditions of this Agreement, you grant Mathison a limited, non-exclusive, non-transferable license to copy, store, record, transmit, display, view, print, or otherwise use Subscriber Data to the extent necessary to perform the Service. You agree that the license to store and maintain Subscriber Data shall survive the termination of this Agreement.
5.4 Limitations on Use. Mathison shall maintain in confidence, and shall not disclose to any third party, Subscriber Data, and Mathison will not use Subscriber Data for any purposes other than the provision of the Service and as provided in Section 3.7 of this Agreement and Mathison’s Privacy Statement.
5.5 Mathison Remediation of Certain Unauthorized Disclosures. In the event that any unauthorized access to or acquisition of Personal Data is caused by Mathison’s breach of its security and/or privacy obligations under this Agreement, Mathison shall provide you notification as required by Law and pay the reasonable and documented costs you incur in connection with the following items: (a) costs of any required forensic investigation to determine the cause of the breach, (b) providing notification of the security breach to applicable government and relevant industry self-regulatory agencies, to the media (if required by Law) and to individuals whose Personal Data may have been accessed or acquired, (c) providing credit monitoring service to individuals whose Personal Data may have been accessed or acquired for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition for such individuals who elected such credit monitoring service, and (d) operating a call center to respond to questions from individuals whose Personal Data may have been accessed or acquired for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition. NOTWITHSTANDING THE FOREGOING, OR ANYTHING IN THE AGREEMENT TO THE CONTRARY, MATHISON SHALL HAVE NO RESPONSIBILITY TO PAY COSTS OF REMEDIATION THAT ARE DUE TO RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD BY YOU OR YOUR EMPLOYEES, AGENTS OR CONTRACTORS.
6. Limited Warranties; Disclaimer of Warranties.
6.1 Service Limited Warranty; Exclusive Remedy. Mathison warrants that the performance and functionality of the Service, in all material respects, meet the specifications set forth in the Documentation. Mathison does not warrant that the Service will be error-free and does not warrant the accuracy of any Applicant Data provided by the Applicants. Your sole and exclusive remedy for Mathison’s breach of this limited warranty shall be that Mathison shall use commercially reasonable efforts to modify the Service to meet the performance and functionality specifications, in all material respects, described in the most current Documentation, and if Mathison is unable to restore such performance and functionality, you shall be entitled to terminate this Agreement and shall be entitled to receive a pro-rata refund of the Subscription Service Fees paid for under this Agreement for your use of the Service for the terminated portion of the Term. Mathison shall have no obligation with respect to a warranty claim (i) unless notified of such claim within sixty (60) days of the first instance of any material performance and/or functionality issue, (ii) if you fail to upgrade to a Supported Version of the Service, or (iii) if the warranty claim is the result of a Third Party Application or a customization of the Service prepared by you or a third party. Any notice required to be sent pursuant to this Section 6.1 must be sent pursuant to Section 11.2.
6.2 No Virus Warranty. Mathison warrants that it will provide the Service free of Malicious Code. This warranty does not extend to your media files, alterations and customizations, Subscriber Data, or Third Party Applications or third-party customizations.
6.3 Security, Data and Backup Warranty. Mathison warrants that Mathison will use commercially reasonable efforts to safeguard and accurately maintain Subscriber Data, consistent with industry security standards and backup procedures. In the event of a breach of this Section 6.3, Mathison shall use commercially reasonable efforts to correct Subscriber Data or restore Subscriber Data as quickly as possible, but in any case, not to exceed three (3) business days.
6.4 Warranty of Title. Mathison warrants that Mathison is the owner of the Service or otherwise has the right to provide the Service to you as set forth in this Agreement without violating any proprietary rights of any third parties.
6.5 Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 6, MATHISON DISCLAIMS, TO THE EXTENT AUTHORIZED BY LAW, ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (I) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WORKMANLIKE EFFORT; (II) WARRANTIES ARISING THROUGH COURSE OF DEALINGS OR USAGE OF TRADE; AND (III) WARRANTIES THAT THE SERVICE WILL BE ERROR FREE. WITHOUT LIMITING THE FOREGOING, MATHISON EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SERVICE. THIS DISCLAIMER APPLIES TO ANY EXPENSES, DAMAGES OR INJURY, REGARDLESS OF THE CAUSE, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTUOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION.
6.6 No Other Warranties. No advice or information provided by Mathison shall create any warranty.
7. Limitation of Liability.
7.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR SIMILAR LOSSES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on liability set forth in this Section 7.1 is independent of your exclusive remedy and survives in the event such remedy is deemed unenforceable.
7.2 Limitation on Damages. To the maximum extent permitted by law, except for a breach of section 3.4, 4, 5.5, 6.4 or 8.1, Mathison’s cumulative liability to you, your affiliates, or any other party related to you for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this agreement shall be limited to the amount of subscription service fees for the Service for twelve (12) months, aggregate for all occurrences. This limitation applies to all causes of action or claims in the aggregate, including, without limitation, breach of contract, negligence, strict liability, and other torts.
7.3 Application of Limitations. All limitations on liability, damages and claims are intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
7.4 No Third-Party Representations or Warranties. No third party is authorized by Mathison to make any representation or warranty to you regarding the Service.
8. Indemnification.
8.1 By Mathison. Mathison will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Service infringes its Intellectual Property Rights; provided (i) you notify Mathison, in writing, not later than twenty (20) days after you receive notice of the claim, (ii) you give Mathison sole control of the defense and any settlement negotiations, and (iii) you cooperate with Mathison in defending against or settling the claim. Mathison’s obligation of indemnification will not apply to the extent that the claim is based on (a) your and/or your Affiliates’ use of the Service after Mathison notifies you to discontinue use due to such a claim, (b) your combining the Service with non-Mathison service, product, data or business process including third party add-ons or programs, (c) damages attributable to the value of the use of a non-Mathison service, product, data or business process, (d) your altering or modifying the Service, including any modifications by third parties, or (e) your use of the Service in violation of this Agreement. You will reimburse Mathison for any costs or damages that result from these actions. If Mathison receives information concerning an infringement or misappropriation claim related to the Service, Mathison may, at its expense and without obligation to do so, either (y) procure for you the right to continue to use the Service, or (z) modify the Service with a functional equivalent, to make it non-infringing. If, as a result of an infringement or misappropriation claim, your use of the Service is enjoined by a court of competent jurisdiction, Mathison will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the Subscription Service Fees paid and terminate this Agreement. This Section 8.1 constitutes your exclusive remedy for third party infringement and trade secret misappropriation claims.
8.2 By Subscriber. You shall indemnify, defend and hold harmless Mathison from and against any and all claims, proceedings, damages, liability and costs (including reasonable attorneys’ fees) incurred by Mathison in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this Agreement, and (ii) your or your Affiliates’ use of the Service, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. Mathison reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Mathison.
9. Third Party Applications.
9.1 No Warranty of Third Party Applications. Mathison does not warrant any Third Party Application regardless of who you may purchase or license the application from.
9.2 Use of Third Party Application. Any agreement for use by you of a Third Party Application is solely between you and the applicable third party provider. You may not use a Third Party Application to enter and/or submit transactions to be processed and/or stored in the Service, unless you have procured the applicable license or subscription to do so.
9.3 No Obligation As to Third Party Application. Mathison is not responsible for any aspect of a Third Party Application that you may purchase, license, subscribe to or connect to through the Service, or any interoperation or other information related to the foregoing. If you install or enable a Third Party Application for use with Service, you agree that Mathison may enable such third party provider to access Subscriber Data for the interoperation of such Third Party Application with the Service. Mathison is not responsible for any exchange of data or other interaction between you and a third party provider of the Third Party Application. Any such exchange or interaction is solely between you and such third party provider and is subject to a separate privacy policy or other terms governing your access to or use of the Third Party Application. Mathison shall not be responsible for any disclosure, modification, corruption or deletion of Subscriber Data resulting from any such access by a Third Party Application for third party providers.
10. Term; Suspension of the Service; Termination.
10.1 Term of Agreement. The term of this Agreement shall be from the date executed above through the date that is one (1) year from the date hereof (the “Term”). This Agreement will automatically renew for additional successive one-year terms unless either party provides prior written notice to the other party of their election to not renew this Agreement at least thirty (30) days prior to the expiration date of the current term.
10.2 Suspension of the Service. Mathison reserves the right to suspend your and your Affiliates’ access to and /or use of the Service: (a) if any payment for the Service is due but unpaid but only after Mathison has provided you with at least 30 days’ prior written notice, or (b) if Mathison reasonably determines that your use of the Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or your use of the Service is causing immediate, material and ongoing harm to Mathison or others. In the event Mathison suspends access to the Service pursuant to Section 10.2(b), Mathison will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with you to resolve the issues which resulted in the suspension of the Service. Mathison shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section. Any suspension pursuant to this Section shall not relief you of your obligation to make payments for the Service.
10.3 Termination. Either Party may terminate this Agreement in the event 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. Mathison may terminate this Agreement upon ten (10) days prior written notice to you if you fail to pay the Subscription Service Fees and do not cure such failure within the ten-day notice period.
10.4 Effect of Termination. Upon any termination of this Agreement, you shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the Service and Confidential Information. Termination for any reason shall not relieve you of the obligation to pay any Subscription Service Fees accrued or due and payable prior to the effective date of termination, and termination for any reason other than for uncured material breach by Mathison shall not relieve you of the obligation to pay all future amounts due, if any.
10.5 Surviving Provisions. The following provisions of this Agreement shall survive the termination of this Agreement; Sections 3.1, 3.3, 3.4, 3.6, 3.7, 4, 5, 6, 7, 8, 9.1, 10.4, 10.5, and 11.
11. General Provisions.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
11.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to Mathison shall be addressed to JD Peterson (JD.peterson@mathison.io). Notices to you shall be addressed to your contact provided to Mathison. Each Party may modify its recipient of notices by providing notice pursuant to this Agreement.
11.3 Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right.
11.4 Force Majeure. Except for your payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Mathison or your employees, respectively). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
11.5 Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due Subscription Service Fees are paid in full. Any attempt by a Party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of law rules. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated in the State of New York. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. You and Mathison agree that the Uniform Computer Information Transactions Act (UCITA) as adopted in any state, in which this Agreement may be performed, shall not apply to this Agreement. Each Party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.7 Export. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, you shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
11.8. Use of Subscriber’s Name. Unless you provide Mathison with written notice to the contrary, you give Mathison the right to use your name in print, on-line, and in other multimedia advertising and marketing materials for the purpose of disclosing that you are a customer of Mathison.
11.9 Modification of Terms. Mathison reserves the right from time to time to modify the terms under which the Service is provided to its subscribers, including you, and as a result to modify the terms and conditions of this Agreement. If Mathison makes a material change to any of the terms of this Agreement, then Mathison will notify you by either sending an email to the notification email address or by mail to the mailing address which has been provided to Mathison. If the change has a material adverse impact on you and you do not agree to the change, you must so notify Mathison in writing within thirty (30) days after receiving notice of the change. If you notify Mathison as set forth in this Section 11.11, then your use of the Service will remain governed by the Agreement as in effect immediately prior to the change until the end of the then current subscription term for the Service. If you renew the Service at the end of the then current term, it will be renewed under Mathison’s then current Subscription SaaS Services Agreement.
