1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" this Master Subscription Agreement, together with any Order Form, any Statements of Work attached to an Order Form ("SOW") and any Purchase Orders made in connection with an Order Form, constitute the entire agreement between Recognote and Customer governing the Services to be provided hereunder relating to the Platform. "
"Confidential Information" of a Party means all technical or business information of such Party, its customers, or other third parties doing business with such Party, that is: (a) disclosed to, accessed by or otherwise learned by the other Party in connection with the provision (or potential provision) of services or products to Customer by Recognote; and (b) marked or indicated as confidential (or with words of similar meaning) or would reasonably be expected to be confidential. For clarity, the Customer Data is Confidential Information of Customer.
"Customer Data"means the data inputted into the Platform by a Customer or Member, as well as by Recognote on the Customer's behalf, for the purpose of using the Platform or facilitating the Customer’s use of the Platform.
"Intellectual Property Rights"means (a) any and all proprietary rights provided under, (Ⅰ) patent law, (Ⅱ) copyright law, (Ⅲ) trademark law, (Ⅳ) design patent or industrial design law, (Ⅴ) semi conductor chip or mask work, or (Ⅵ) any other statutory provision of common law principle applicable to this Agreement and/or the deliverables, including trade secret law which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression of use of such ideas, formulae, algorithms, concepts, inventions or know how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
"Laws"means all laws, ordinances, rules, regulations and court (or other governmental) orders, whether international, federal, state, provincial or local.
"Launch Date"is the date referenced in the applicable Order Form from which the Platform subscription term shall commence.
"Members"means employees of Customer as well as any third parties Customer permits access and use of its program on the Platform.
"Member Services"means the fulfillment services described herein
"Member Services Fee"means the Member Services Fee Percentage identified in Section 4.1 multiplied by the dollars spent on Points (i.e. where the Member Services Fee Percentage is 15%, for a purchase of $1,000,000 Points, the Member Services Fee shall be $150,000).
"Party"individually shall mean Recognote or Customer and "Parties" shall mean Recognote and Customer together.
"Point"means a unit purchased by Customer from Recognote for use and redemption by Members in exchange for Rewards on the Platform, which typically shall be purchased from Recognote at $0.01 per Point.
"Purchase Order"means the document used to purchase additional Points or additional Member license seats for Platform access.
"Reward"means any item of merchandise or service offered for Member redemption from the reward catalog through the Platform.
"Services"means the Platform, Implementation Services and Member Services to be provided by Recognote pursuant to this Agreement.
"Platform"means the uniquely configured portal instance of the Recognote’ standard software as a service offering that is to be used by Customer and hosted by Recognote. The term "Platform" shall include any modifications or enhancements thereto, or new versions thereof and is further described in the Order Form.
2.1 Term of Agreement. The Agreement will commence as of the Effective Date and will
continue until the Agreement is terminated in accordance with Section
2.2. Termination. A Party may terminate this Agreement for cause (Ⅰ) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, (Ⅱ) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (Ⅲ) upon 30 days written notice of termination. If this Agreement is terminated by Customer in accordance with this section, Recognote will refund Customer any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Recognote in accordance with this section, Customer will pay any unpaid fees covering the remainder of the. In no event will termination relieve Customer of its obligation to pay any fees payable to Recognote for the period prior to the effective date of termination.
Effect of Termination. In the event of any termination or expiration:
a) Recognote shall cease the terminated or expired Services upon the effective date of termination or expiration provided that if the Customer is in good standing in respect of the payment of its invoices, the Customer and Members shall be permitted access to the Platform and redeem Points for a period not to exceed 60 days. No new Points may be awarded during such 60 day period.
b) Subject to the rights provided in Section 2.4(a):
Ⅰ. All licenses granted under this Agreement shall immediately terminate;
Ⅱ. Each Party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other Party;
Ⅲ. Recognote may destroy or otherwise dispose of any of the Customer Data in its possession unless Recognote receives, no later than thirty (30) days after the effective date of termination or expiration of this Agreement, a written request for the then most recent back-up of Customer Data. Recognote shall use commercially reasonable efforts to make available to Customer the back-up of Customer Data for export or download within 30 days of its receipt of such a written request, provided that the Customer has, at such time, paid all fees outstanding (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Recognote in returning or disposing of Customer Data; and
Ⅳ. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
3.1 Accounts & Authorized Members. Customer may register an unlimited number of accounts
for their employees and other related parties. Each Account will have one password that
will permit one Member access to the Platform.
Content. Customer is solely responsible for the content of all communications sent using the Platform. Customer will not use the Platform to communicate any message or material that (Ⅰ) is libellous, harmful to minors or obscene; (Ⅱ) infringes the intellectual property rights of any third party or is otherwise unlawful; or (Ⅲ) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any Laws. Recognote will use commercially reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.
Non-Permitted Activities. The Customer agrees that neither it nor its Member shall:
a) copy or attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software contained on the Platform and/or Services (as applicable) in any form or media or by any means;
b) tamper with the security of the Platform or Recognote’ other customer accounts;
c) attempt to probe, scan or test the vulnerability of the Platform, breach the security or authentication measures of the Platform without proper authorization or willfully render any part of the Platform unusable;
d) access data on the Platform not intended for the Customer or log into a server or account on the Platform that Customer is not authorized to access;
e) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software contained on the Platform;
f) access all or any part of the Services in order to build a product or service which competes with the Services;
g) use the Services to provide services to third parties;
h) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Members; attempt to obtain, or assist third parties in obtaining, access to the Services, other than as permitted hereunder; or
j) permit any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Recognote.
Customer Responsibilities. Customer agrees that it shall:
a) provide Recognote with all necessary co-operation in relation to this Agreement, including but not limited to those required for the Implementation Services;
b) provide Recognote with all necessary access to such information as may be required by Recognote in order to render the Services, including but not limited to Customer Data;
c) comply with all applicable Laws and regulations with respect to its activities under this Agreement;
d) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Recognote may adjust any agreed timetable or delivery schedule as reasonably necessary;
e) ensure that Members use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Member’s breach of this Agreement;
f) ensure that its network and systems comply with the minimum relevant standards provided by Recognote from time to time;
g) ensure that all login details and passwords are securely maintained;
h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Recognote’ data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and be responsible to relay terms affecting Members to said Members and to provide accurate Customer Data to Recognote.
Customer Affiliates. Customer agrees that it shall be responsible and liable for all acts and omissions of its Affiliates and will cause such Affiliates to comply with the provisions of this Agreement. Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Member (including non-payment of fees), without limiting Recognote’ other rights and remedies, Recognote may immediately suspend Customer’s and its Members’ access to the Platform.
4.1 Invoicing. Use of the Platform for recognition is provided at no charge. Customer
will be charged for all Points redeemed for Rewards from the Recognote Reward catalog.
An additional Member Services Fee will be charged when Members redeem Points for Rewards.
Except as otherwise specified herein, (Ⅰ) fees are based on the Services purchased
and not actual usage, and (Ⅱ) payment obligations are noncancelable and fees paid
4.2 Member Services Fee. If payments are made by credit card the Member Services Fee will be 7%. If payments are made by electronic funds transfer, wire or cheque, the Member Services Fee will be 5%.
4.4 Payment. At Customer's option, payment of fees due to Recognote may be made by (Ⅰ) credit card, or (Ⅱ) by making a deposit using electronic funds transfer, wire or check, from which payments are deducted. Payment by electronic funds transfer, check or wire shall be considered made when released from Customer's account. Customer shall pay interest in respect of any amounts which are not paid by its due date at a rate per annum of twelve percent (12%) calculated on a daily basis on the daily outstanding balance from such due date plus all reasonable expenses and fees of collection.
4.5 Taxes. The fees payable to Recognote does not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer understands and acknowledges that it is responsible for paying all Taxes associated with Customer’s purchase of the Services hereunder and its Member’s use of the Platform. If Recognote has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section
4.6. Recognote will invoice Customer and Customer will pay that amount unless Customer provides Recognote with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Recognote is solely responsible for taxes assessable against Recognote based on Recognote’s income, property and employees.
5.1 Points Value. Points allocated to Members have no independent economic or cash
surrender value. Points are only redeemable by Members for Rewards using the Platform.
Platform, which Customer may amend from time to time. Allocation. Recognote will allocate
all Points to Members in accordance with Customer’s instructions. Customer understands
and agrees that Points, once awarded to a Member shall not be returned to Customer in any
instance. Transferability of Points by Customer from one Member to another will only be
done based on an error in allocating Points. Points awarded to a Member may be redeemed
at any time during the term of this contract, provided the recipient is a part of the
program. If Customer indicates the Member ceases to be part of the program, the Member
will have a maximum of 30 days to redeem their Points, after which such Points shall expire.
Catalog. The Recognote Reward catalog shall be made available to the Customer via the Platform. The Reward catalog will consist of merchandise, experiences, gift cards, charitable donations and electronics. Stored value cards, if offered, have a ‘valid thru’ date indicated on the front of the gift card. Members must use all the available funds by the ‘valid thru’ date and any balance remaining after this date will expire. Prepaid cards that are stolen or misused will require the member to file a dispute directly with the gift card supplier to conduct an investigation into the validity of any request.
Return Policy. Recognote’ return policy provides Members with the ability to return damaged products or improper orders within 10 business days of receipt. Where the issue is one of malfunction, especially in the case of electronics, Members must rely on the manufacturer’s warranty. Returns or exchanges must be in their original packaging. Returns or exchanges are not allowed for virtual redemptions (such as life experience packages, gift certificates or magazine subscriptions), linen, jewelry, electronic products, software packages or video games whose packaging has been opened. Opened packages will be returned to the Member. The return policy is detailed on the Platform and is subject to change from time to time.
During the term of this Agreement, Customer hereby agrees that Recognote may include Customer’s name and logo as a customer who uses the Services in Recognote marketing materials. Customer and Recognote agree that during the term of this Agreement they will collaborate on press releases and other joint communications surrounding Customer’s use of the Services. During the term of this Agreement, Recognote may request Customer to serve as a reference, participate in analyst calls, provide statements for marketing purposes, and/or develop case studies on Customer’s success in using the Services. Customer agrees to respond within a reasonable amount of time to Recognote for assistance with the aforementioned.
Confidential Information. This Section 7 (and the
definition of "Confidential Information") shall apply to this Agreement even if there
is a confidential information (or non-disclosure) agreement between the Parties (and,
thus, for purposes of this Agreement, this Section 7 shall supersede any such agreement).
Until one year from the end of the term of this Agreement, each Party shall not: (Ⅰ)
access or use the other Party's Confidential Information except as necessary for it to
perform its obligations or exercise its rights; or (Ⅱ) disclose the other Party's
Confidential Information to, or allow access to the other Party's Confidential Information
by, any individuals or third parties except as provided in Section 8.3. In addition,
each Party shall protect the other Party's Confidential Information with at least the
same level of care as it protects its own similar confidential information, but not less
than a commercially reasonable level of care. The receiving Party may disclose relevant
aspects of the other Party's Confidential Information to the employees, directors,
professional advisors (including accountants), suppliers and other agents of the receiving
Party to the extent such disclosure is necessary for the performance of their obligations
to such Party; provided, however, such Party causes the Confidential Information to be
held in confidence by the recipient to the same extent and in the same manner as
required under this Agreement. In addition, the receiving Party may disclose Confidential
Information of the other Party to the extent required to comply with any Laws; provided,
however, such Party provides the other Party with prior notice of any such disclosure
to the extent permitted. The restrictions on use and disclosure in this Section 7 shall
not apply to Confidential Information that is: (Ⅰ) already known by the receiving
Party at the time of receipt, as demonstrated by prior records; (Ⅱ) known to the
public through no fault of the receiving Party; (Ⅲ) lawfully received by the
receiving Party from a third party, where the third party does not require the information
to be held in confidence; or (Ⅳ) developed by the receiving Party independently of
disclosure by or receipt from the other Party. Upon a Party's written request (and at the
end of the term of this Agreement), as directed by such Party, the other Party shall
promptly return all Confidential Information and all written materials that contain,
summarize or describe any Confidential Information, except to the extent there is a
license to such materials under this Agreement. The foregoing sentence shall not apply
to copies of electronically exchanged Confidential Information made as a matter of routine
information technology backup and to Confidential Information or copies thereof which must
be stored by the receiving party, its affiliates or its advisors according to provisions
of mandatory law, provided that such Confidential Information or copies thereof shall be
subject to the confidentiality obligations in this Section 7.
Equitable Relief. The receiving party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the receiving party the disclosing party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
8.1 Proprietary Rights. Subject to the payment of the Platform Fees, Customer and its
Members are permitted to access and use the Platform, but this Agreement is not otherwise
an agreement for the sale or license of any software. The Customer acknowledges and agrees
that Recognote and/or its licensors own all Intellectual Property Rights in the Services.
Except as expressly stated herein, this Agreement does not grant the Customer any rights
to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks
(whether registered or unregistered), or any other rights or licenses in respect
of the Services.
Platform and Other Intellectual Property. Recognote grants Customer a global, non-exclusive, non-transferable license for Customer and Members to access and use the Platform during the term of this Agreement. Recognote shall only permit use of the Platform by Members authorized by Customer. Customer Grant. Customer grants Recognote a royalty-free, non-exclusive, non-transferable license for Recognote to display the graphics and trademarks approved by Customer on the Platform for the purpose of performing its obligations under the Agreement.
9.1 Ownership. The Customer shall own all rights, title and interest in and to all of
the Customer Data and shall have sole responsibility for the legality, reliability,
integrity, accuracy and quality of the Customer Data. Whether Customer Data is uploaded
by Customer or by Recognote, Recognote shall not be responsible for errors in Customer Data.
Correction. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Recognote to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Recognote in accordance with the archiving procedure described in its back-up policy. Recognote shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Recognote to perform services related to Customer Data maintenance and back-up).
Backup and Return. Recognote shall backup the Platform and any Customer Data stored by Recognote in connection with the Services, in the format and on the frequency customarily provided with services similar to the Services. During the term of the Agreement, upon Customer's request and as directed by Customer, Recognote shall promptly: (Ⅰ) provide or return the Customer Data, or requested portion thereof, to Customer; and (Ⅱ) erase or destroy the Customer Data, or requested portion thereof, in Recognote' possession. The foregoing sentence shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof that must be stored by the receiving party, its affiliates or its advisors according to provisions of mandatory law (including but not limited to tax and audit purposes); provided, however, such Confidential Information or copies thereof shall be subject to the confidentiality obligations set forth in Section 7.
Privacy. Recognote shall, in providing the Services, comply with its privacy and security policy relating to the privacy and security of the Customer Data as such document may be amended from time to time by Recognote in its sole discretion.
Use of Customer Data. Recognote, its subcontractors, agents and third party service providers shall be permitted to access and use the Customer Data solely to the extent required to perform the Services and their obligations hereunder. In addition, Recognote shall be permitted to use anonymized Customer Data both during and after the term of this Agreement to the extent that such data is not identified or identifiable as relating to the Customer or any Member.
10.1 Customer Indemnity. The Customer shall defend, indemnify and hold harmless Recognote
against any claims, actions, proceedings, losses, damages, expenses and costs
(including without limitation court costs and reasonable legal fees) arising out of or in
connection with the Customer's use of the Services, provided that:
a) the Customer is given prompt notice of any such claim;
b) Recognote provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and
c) the Customer is given sole authority to defend or settle the claim. 10.2 Recognote Indemnity. Recognote shall, subject to Section 10.1, defend the Customer, its officers, directors and employees against any claim that the Services infringes any Canadian or United States patent effective as of the Effective Date, copyright or trade-mark, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
a) Recognote is given prompt notice of any such claim;
b) the Customer provides reasonable co-operation to Recognote in the defense and settlement of such claim, at Recognote’ expense; and
c) Recognote is given sole authority to defend or settle the claim.
10.3 Recognote Rights. In the defense or settlement of any claim, Recognote may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 business days’ notice to the Customer and refund Customer a prorated amount equal to the Platform Fees covering the whole months that would have remained, absent such early termination without any additional liability or obligation to the Customer.
10.4 Exclusions. In no event shall Recognote, its employees, agents and sub-contractors be liable to the Customer under Section 10.2 to the extent that the alleged infringement is based on:
a) a modification of the Services by anyone other than Recognote;
b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by Recognote or in contravention of the terms of this Agreement; or
c) the Customer's use of the Services after notice of the alleged or actual infringement from Recognote or any appropriate authority.
10.5 Sole Remedy. This Section 10 states the Customer's sole and exclusive rights and remedies, and Recognote (including the Recognote affiliates’, employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright or trademark.
In no event will either party be liable for any indirect, special, incidental, consequential, punitive or exemplary damages of any kind, however caused and whether in contract, tort or under any other theory of liability, including loss of business, goodwill, profits, data, sales or revenue, work stoppage or computer failure or malfunction, in each case whether or not the party has been advised of the possibility of such damages. Without limiting the foregoing, in no event will recognote be liable to customer for any damages, costs, claims or other liabilities related to or arising out of this agreement, whether in contract, negligence or tort, in excess of the total platform fees paid by the customer for the right to access and use the platform under this agreement during the twelve (12) month period immediately preceding the event or act giving rise to the cause of action. this section 11 will apply to the maximum extent permitted under applicable law.
12.1 Corporate Authority. Each party represents and warrants that it has the legal power
and authority to enter into this Agreement, and that it is executed by an employee or
agent of such party with all necessary authority to bind such party to the terms and
conditions of this Agreement.
Functionality Warranty. Recognote warrants that the Platform will operate in substantial conformity with the then current version of the applicable documentation provided by Recognote.
Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 12.1 AND 12.2, (Ⅰ) THE PLATFORM AND ALL OTHER RECOGNOTE SERVICES ARE PROVIDED "AS IS", AND (Ⅱ) RECOGNOTE, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 12.1 AND 12.2 ARE SOLELY FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. RECOGNOTE AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE PLATFORM WILL MEET THE CUSTOMER'S REQUIREMENTS, (B) THE OPERATION OF THE PLATFORM WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE PLATFORM CAN OR WILL BE CORRECTED, (D) THE PLATFORM OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. RECOGNOTE AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURE, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER'S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.
Remedies. If there is a failure to comply with Section 12.2, Recognote shall correct such failure in a prompt and timely manner commensurate with the nature and effect of such failure, but in no event later than 45 days after notification from Customer. Such correction shall be repairing or replacing the Platform, or re-performing (or performing, if not yet performed) the applicable Service, such that the corrected Platform or Service complies with such Sections. If the failure is not so corrected, then Customer may:
(a) extend the time for Recognote to correct such failure (if correction is commercially practical);
(b) receive an appropriate, agreed-upon reduction in, or refund of, the fees; or
(c) terminate the Agreement.
13.1 Amendment. No amendment of this Agreement shall be valid unless in writing and signed
by an authorized representative of Customer and Recognote.
Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. No Party may assign this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, provided, however, that either Party may, without the prior consent of the other Party, assign its rights and obligations hereunder (Ⅰ) to any affiliate of the assigning Party or (Ⅱ) in connection with the sale or transfer of all or substantially all of the assigning Party’s assets, the acquisition in one or a series of transactions by a person or group of fifty percent (50%) or more of the beneficial ownership of the assigning Party, or a consolidation, business combination, merger, or similar transaction. Any assignment in contravention of this Section is null and void.
Entire Agreement. This Agreement supersedes all prior discussions and agreements, and represents the entire agreement, between the Parties with respect to the subject matter hereof.
Force Majeure. If a Party's performance is prevented by fire, flood, earthquakes, other elements of nature or acts of God, acts of war, terrorism, riots, rebellions or revolutions, civil disorders or third party labor strikes, then the affected Party shall be excused for such non-performance for as long as such event continues; provided, however, such event is beyond the control of the affected Party (and could not be prevented by appropriate precautions) and the affected Party is diligently attempting to recommence performance. The affected Party shall immediately notify the other Party of the occurrence of the event and, if non-performance continues for 15 days (or more), the other Party may terminate this Agreement or the affected portion of such as of the date specified in the termination notice.
Governing Law and Jurisdiction. This Agreement is to be construed under the laws of the State of California excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement.
Independent Contractor. Recognote is an independent contractor of Customer. The individuals and entities retained by or on behalf of Recognote to perform Recognote’ obligations under this Agreement shall at all times be under Recognote' exclusive direction and control and shall in no way be deemed to be an employee, agent or contractor of Customer.
Severability. Each provision of this Agreement shall only apply to the extent permitted by applicable Laws (and the use of "to the extent permitted by applicable Laws" in any particular provision shall not prejudice that this principle applies to all provisions). If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement shall remain in full force and effect, except to the extent such remaining provisions are not capable of substantial performance as a result of such holding.
Survival. All Sections of this Agreement that by their nature should survive, shall survive termination (or expiration) of this Agreement.
Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or obligation shall not be construed to be a waiver of any succeeding breach or any other obligation.
The parties hereto have caused this Agreement to be executed by their duly authorized representatives, effective as of the day and year first above written.