“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
“Application Services” shall mean the online, internet-based application provided by ROI via http://www.rightoninteractive.com and/or other designated websites, including associated offline components as described by the User Guide.
“Confidential Information” shall have the meaning set forth in Section 7.
“Customer Data” means all electronic data or information submitted by Customer to the Application Service.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts or agents.
“Non-Public Personal Information” means personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), passwords, employment, insurance numbers, passport numbers or protected health information.
“Order Form” shall mean the ordering documents for Customer’s purchases of Application Services from ROI that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein.
“Professional Services” shall mean the implementation, integration, consulting and similar services described in a Statement of Work.
“Project Start Date” shall mean some date mutually agreed upon by the parties upon which ROI shall commence provision of Professional Services under a Statement of Work.
“Services” shall mean the Application Services and Professional Services collectively.
“SOW Effective Date” shall mean the SOW Effective Date set forth in each SOW.
“Start Date” shall mean the date on which ROI shall make the Application Services available to Customer as set forth in an applicable Order Form.
“Statement of Work” or “SOW” shall mean ROI’s form for ordering Professional Services which specifies the scope and schedule of Professional Services to be performed by ROI for Customer and the fees applicable thereto and which SOW has been executed by Customer and ROI. Each SOW entered into hereunder shall reference this Agreement and be governed by the terms hereof. In the event of a conflict or inconsistency between a term in a Statement of Work and this Agreement, the terms set forth in this Agreement shall control unless the parties expressly agree otherwise in the applicable Statement of Work.
“Subscription Term” shall mean the subscription period set forth on an applicable Order Form, including any renewal term.
“Term” shall have the meaning set forth in Section 11.1.
“User Guide” shall mean the online user guide for the Application Services, accessible via http://www.rightoninteractive.com, as updated from time to time.
“Users” means individuals who are authorized by Customer to use the Application Services and who have been supplied user identifications and passwords by Customer (or by ROI at Customer’s request). Users may include but are not limited to employees, consultants, contractors, distribution channel partners and agents of Customer or its Affiliates.
2. APPLICATION SERVICES
2.1 Provision of Application Services. ROI shall make the Application Services available to Customer and its Users pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of Application Services is not contingent upon the delivery of any future functionality or features. All rights not expressly granted to Customer hereunder are reserved by ROI and its licensors.
2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the Application Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates and such Affiliates shall be deemed the “Customer” as contemplated herein.
3. USE OF THE APPLICATION SERVICES
3.1 ROI Responsibilities. ROI shall: (a) provide the Application Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) use commercially reasonable efforts to ensure that the Application Services perform in material compliance with the User Guide; (c) provide basic support to Customer’s Users at no additional charge; and (d) use commercially reasonable efforts to make the Application Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which ROI shall make good faith efforts to give reasonable notice via email, the Application Services and/or by other means); or (ii) any unavailability caused by circumstances beyond ROI’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ROI employees), computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems not within ROI’s possession or reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User’s account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application Services, and notify ROI promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Application Services, including anti spam laws such as the CAN SPAM Act of 2003 (U.S.) and Canadian Anti Spam Legislation (CASL). Except as expressly provided in Section 3.3, Customer shall not upload to, or store within, the Application Services (and the Customer Data shall not contain) any Non-Public Personal Information.
3.3 Protected Health Information. If Customer wishes to utilize the Application Services in connection with protected health information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)), Customer must contract for and be approved by ROI as an approved healthcare customer (each, a “Healthcare Customer”). Each Healthcare Customer agrees to use best practices in limiting the amount of and nature of protected health information that is stored within the Application Services and to advise ROI if, at any time, there is any material change in the nature of its use or storage of protected health information.
3.4 Use Guidelines. Customer shall use the Application Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party except as contemplated by this Agreement; (b) post or otherwise distribute via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) post or otherwise distribute via, upload to, or store within the Application Services any Malicious Code; (d) interfere with or disrupt the integrity or performance of the Application Services or the data contained therein; or (e) attempt to gain unauthorized access to the Application Services or its related systems or networks. Customer understands and acknowledges that ROI may: (i) refuse to distribute any content that ROI reasonably believes is defamatory, infringing, or otherwise unlawful; (ii) refuse to distribute any content or messages that ROI reasonably believes may be unlawful; (iii) has no obligation to review content or other Customer Data; and (iv) has no obligation with regard to the creation of content via the Application Services which shall be Customer’s sole responsibility.
4. PROFESSIONAL SERVICES
4.1 Who May Order. Customer or a Customer Affiliate may obtain Professional Services from ROI. Each Customer entity purchasing Professional Services shall perform its respective obligations in accordance with the terms and conditions of this Agreement and the relevant SOW.
4.2 Personnel; Use of Subcontractors. Subject to the provisions below and unless otherwise specified in the applicable SOW, ROI shall supply all materials, equipment, and qualified personnel necessary to perform the Professional Services. ROI may use subcontractors to perform the Professional Services. Any subcontractors used by ROI shall have executed a written agreement with ROI that obligates any such subcontractor to protect Customer’s Confidential Information to the same extent as is required of ROI hereunder. ROI shall be responsible for all acts and omissions of any such subcontractor to the same extent as if ROI had performed the Professional Services.
4.3 Relationship to the Application Services. The Professional Services may be in support of Customer’s subscription to use the Application Services pursuant to an Order Form. No SOW grants Customer any rights to use the Application Services. Except as specifically set forth in a Statement of Work, Customer’s purchase of Professional Services is not contingent upon the delivery of any future functionality or features in the Application Services, nor is it dependent upon any oral or written public comments made by ROI with respect to future functionality or features.
5. FEES & PAYMENT
5.1 Application Services Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified in an Order Form, fees are based on the Application Services purchased and not actual usage; payment obligations are non-cancelable; fees paid are non-refundable; and the Application Services purchased cannot be decreased during the relevant Subscription Term.
5.2 Professional Services Fees. ROI performs Professional Services on a fixed price or time and materials basis as described below.
A. Fixed Price. If a Statement of Work provides for payment on a “Fixed Price” basis, ROI will invoice Customer for work performed as set forth in such Statement of Work. If ROI is delayed in completing the Professional Services beyond the estimated Duration of the SOW and such delay is due to Customer’s unavailability, failure to cooperate, failure to provide information required by ROI to provide the Professional Services, and/or provision of materially inaccurate or misleading information, ROI shall notify Customer that its performance of the Professional Services may be delayed. In such cases ROI’s obligations may be reconsidered, the time to provide Professional Services may be extended, and ROI may renegotiate the fixed fee.
B. Time & Materials. If a Statement of Work provides for compensation on a time and materials or “T&M” basis, the Professional Services shall be provided at ROI’s T&M rates in effect as of the SOW Effective Date. On a T&M engagement, if an estimated total amount is stated in the applicable SOW, that amount is solely a good faith estimate for Customer’s budgeting and ROI’s resource scheduling purposes and not a guarantee that the Professional Services will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, ROI will continue to provide Professional Services on a T&M basis under the same rates and terms.
5.3 Expenses. Customer shall reimburse ROI for reasonable travel and out-of-pocket expenses incurred in conjunction with the Professional Services.
5.4 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced in advance and in accordance with the applicable Order Form and/or SOW. Customer shall pay invoices as stated in such Order Form or SOW and, if not stated, are due 30 days from invoice date.
5.5 Overdue Payments. Customer’s failure to pay as set forth herein shall constitute a material breach of this Agreement and ROI may impose late fees as contemplated in each Order Form and/or SOW. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), ROI may, in addition to any of its other rights or remedies, suspend Customer’s access to the Application Services and/or suspend provision of Professional Services, without liability to Customer, until such amounts are paid in full. If such failure to pay has not been cured within 30 days of the due date, then upon written notice ROI may terminate this Agreement and any or all outstanding Order Forms and/or Statements of Work.
5.6 Taxes. Unless otherwise stated, ROI’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on ROI’s net income or property. If ROI has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ROI with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, ROI reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Application Services; (b) frame or mirror any content forming part of the Application Services, other than on Customer’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer the Application Services; or (d) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services.
6.3 Customer Data and Marks. As between ROI and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. ROI shall not access Customer’s user accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request. ROI may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services, subject to Customer’s written instructions or trademark guidelines.
6.4 Improvements. ROI shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by ROI in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in ROI by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to ROI all rights, title, and interest which Customer or its Affiliates may have in to such refinements and improvements.
6.5 Professional Services Deliverables. ROI hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by ROI for Customer under a Statement of Work (“Deliverables”). ROI shall retain all ownership rights to the Deliverables.
6.6 Publicity; Trademarks. During the Term, either party may include the name and logo of the other party in lists (including on its website) of customers or vendors in accordance with the other party’s standard trademark usage guidelines or written instructions. Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
7.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7.5 Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of two (2) years after such expiration or termination.
8. WARRANTIES & DISCLAIMERS
8.1 Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
8.2 Customer Warranties. Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; and (b) Customer shall not use the Application Services in a manner that violates any international, federal, state, or local law or regulation
8.3 ROI Warranties.
A. Application Services. ROI represents and warrants that: (a) the Application Services will conform in all material respects to the documentation thereof and will not be materially decreased during a Subscription Term; (b) ROI shall utilize software and other commercially reasonable security measures to prevent the Application Services from containing or transmitting Malicious Code; and (c) it owns or otherwise has sufficient rights in the Application Services to grant to Customer the rights to use the Application Services granted herein.
B. Professional Services. ROI represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with accepted industry standards. Customer must report any deficiencies in the Professional Services to ROI in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this Section 8.3(B), Customer’s exclusive remedy, and ROI’s entire liability, shall be the re-performance of the Professional Services. If ROI is unable to re-perform the Professional Services as warranted within 30 days of receipt of notice of breach, Customer shall be entitled to terminate the applicable SOW for cause and to recover the portion of fees paid to ROI for the deficient Professional Services.
8.4 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ROI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR A WARRANTY OF ANY SPECIFIC PERFORMANCE OR CAPABILITY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ROI.
9.1 By ROI. Subject to this Agreement, ROI shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits or proceedings (each, a “Claim”) made or brought against Customer by a third party alleging that Customer’s use of the Application Services or Deliverables within the scope of this Agreement infringes the patent, copyright, trademark or trade secret rights of such third party; provided, however, that ROI shall have no such indemnification obligation to the extent such infringement: (a) relates to use of the Application Services or Deliverables in combination with other software, data products, services, or materials not provided by ROI and the infringement would not have occurred in the absence of such combination; (b) arises from or relates to modifications to the Application Services or Deliverables not made or authorized by ROI; or (c) to the extent Customer continues the activity or use constituting or contributing to the infringement after written notification thereof by ROI.
9.2 By Customer. Customer shall defend, indemnify, and hold ROI harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a Claim that (a) Customer Data, Customer trademarks and/or any material provided to ROI necessary to perform the Professional Services, infringe the intellectual property rights of a third party; (b) ROI’s use of Customer Data in connection with its provision of the Application Services has otherwise harmed a third party; or (c) Customer’s violation of any applicable law.
9.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 9, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; and (b) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
Limitation of Liability. EXCEPT WITH REGARD TO ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL ROI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY; PROVIDED THAT DURING THE FIRST 12 MONTHS OF THE TERM, SUCH AMOUNT SHALL BE THE AMOUNT ORIGINALLY PROJECTED TO BE PAID AND/OR DUE DURING THE FIRST 12 MONTHS.
10.1 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Time to File Claim. NO CLAIM MAY BE BROUGHT BY CUSTOMER UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.
11. TERM & TERMINATION
11.1 Term of Agreement. This Agreement commences on the Effective Date and continues as long as any subscription under an Order Form continues or Professional Services are being provided until terminated as set forth in this Section 11 (the “Term”).
11.2 Term of Subscriptions. Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year for the fees set forth in the applicable Order Form unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Except as provided to the contrary, ROI may increase its fees for the Subscription Service on each renewal; provided such increases shall be capped at 5% over the fees for the prior year.
11.3 Term of Statements of Work. Each SOW shall commence on the SOW Effective Date and continue until the Professional Services described therein are completed. ROI may terminate a Statement of Work for convenience upon five business days’ prior written notice if Customer has not authorized work to begin under such SOW within 30 calendar days of the SOW Effective Date.
11.4 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a voluntary petition in bankruptcy, an involuntary petition in bankruptcy which is not dismissed within 60 days of filing, or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not dismissed within 60 days of the initial proceeding or filing. ROI may immediately terminate this Agreement upon notice to Customer if (i) ROI or Customer receives notice from any governmental entity that ROI (in connection with its provision of the Application Services to Customer) or Customer is alleged to be in violation of any applicable law, or (ii) ROI learns of any Customer activity that ROI deems, in its sole discretion, to be in violation of applicable law. Upon any termination for cause by Customer, ROI shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to ROI prior to the effective date of termination. Upon any termination for cause by ROI, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
11.5 Surviving Provisions. Section 1 and Sections 5 through 13 shall survive any termination or expiration of this Agreement.
12. NON-SOLICITATION OF EMPLOYEES. During the Term and for a period of one year from the date of termination of this Agreement (the “Non-Solicitation Period”), Customer will not solicit or cause to be solicited for employment, directly or indirectly, any person who is employed by ROI and directly involved in providing Professional Services hereunder without ROI’s prior written consent. If ROI does not give its consent to Customer and an employee of ROI is employed by Customer at any time during the Non-Solicitation Period, then Customer shall pay ROI a fee in the amount of one times the annual salary of such employee. Notwithstanding the foregoing, Customer may (a) hire any such person who has been terminated by ROI before the commencement of employment discussions; (b) solicit and hire such person through general public advertisements that are not primarily targeted at such person; and/or (c) hire such person that Customer can prove was engaged in employment discussions with it prior to the Effective Date.
13. GENERAL PROVISIONS
13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing by U.S. first class mail; (c) the day received through a commonly accepted courier with evidence of delivery; or (d) the second business day after sending by email. Notices shall be addressed to the parties and contact information indicated on the signature page to the applicable Order Form. Either party may change its contact information up written notice to the other party.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), upon written notice to the other party in connection with a merger, acquisition, or sale of all or substantially all of its assets to a party that is not an affiliate of the assigning party (where affiliate is a party controlling, controlled by or under common control where control is indicated by equity ownership of at least 50%). Any attempt by a party to assign its rights or obligations under this Agreement in breach of 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.
13.7 Governing Law; Waiver of Jury Trial; Legal Fees. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In addition to Section 5.5, if either party hereto resorts to legal action for the redress of a breach of this Agreement, the prevailing party shall be entitled to an award of all costs and reasonable attorneys’ fees.
13.8 Entire Agreement. This Agreement, including all Exhibits, Order Forms and Statements of Work, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit, Order Form, or Statement of Work, the terms of this Agreement shall prevail unless expressly stated otherwise in the applicable Exhibit, Order Form, or Statement of Work. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms and Statements of Work) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.
13.9 Counterparts. This Agreement may be executed in one or more original, facsimile or pdf counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.