This Master Services Agreement is hereby incorporated into the order form (“Order”) and is entered into between the customer identified in the Order (“Customer”), and the applicable Statement entity identified in the Order (“Statement”) (each, a “Party” and collectively, the “Parties”). This Master Services Agreement, along with the Order, are referred to herein as the “Agreement”. The provisions of this Agreement will apply to the Services (as defined herein) provided to Customer under this Agreement. Customer represents that it is authorized to action behalf of, and bind to this Agreement, the entity listed on the Order.
(A) Whereas, Statement is the owner and provider of a software-as-a-service platform that allows real-time cash management and payment visibility (“Solution”), and certain other associated services, as more fully described in the applicable Order (collectively, the “Services”); and
(B) Whereas, Customer wishes to use the Services, and Statement wishes to supply to the Services to Customer, in accordance with the terms and conditions of this Agreement.
Now, Therefore, for good and valuable consideration of the mutual covenants and promises herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions
Capitalized terms have the meaning set forth below or as defined within this Agreement.
1.1 “Authorized User” means the employees, agents and independent contractors engaged by the Customer who are authorized to access the Services pursuant to Customer’s rights under this Agreement.
1.2 “Customer Data” means content, data, and information provided or submitted to Statement by, or on behalf of, Customer or its Authorized Users, in connection with the Services. The Customer Data does not include Performance Data.
1.3 “Documentation” means all specifications, user manuals, and other technical materials relating to the Services that are provided or made available to Customer, and as may be modified by Statement from time to time.
1.4 “Fees” means the fees for the Services as set forth on an Order.
1.5 “Intellectual Property Rights” means all past ,present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.6 “Performance Data” means general performance and usage data generated or collected through or in connection with Customer’s use of the Services (such as technical logs, account and login data, processed volumes).
1.7 “Statement Technology” means the Solution, the Services, Performance Data, and any applicable software, data, or technical information contained within the foregoing.
2. Access to the services; Restrictions
2.1 Access. Subject to the terms and conditions of this Agreement, Statement hereby grants to Customer, and the Authorized Users on Customer’s behalf, a limited, non-exclusive, non-transferable (except as permitted under Section 11.4), non-sublicensable right during the Term to:(a) use and access the Services in accordance with the Documentation and the terms of this Agreement; and (b) use and make reasonable copies of the Documentation, in each case solely for Customer’s internal business purposes. Customer acknowledges and agrees that Statement may update the Services from time to time with or without notifying Customer; provided that Statement shall use commercially reasonable efforts to ensure that any such updates do not materially degrade the functionality of the Services.
2.2 Restrictions. Customer shall not, and shall procure that its Authorized Users shall not: (a)allow any third party to access the Statement Technology except as expressly allowed herein; (b) modify, adapt, alter or translate the Statement Technology; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Statement Technology for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Services without prior authorization of Statement; (f) modify, copy or make derivative works based on any part of the Statement Technology; (g) access or use the Statement Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (h) attempt to access the Services through any unapproved interface; (i) use the Services in connection with any of Customer’s time-critical or mission-critical functions; (j) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Statement or its licensors on the Statement Technology or any copies thereof; or (k) otherwise use the Statement Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order or this Agreement. Statement reserves the right to suspend Customer or any Authorized User’s access to the Services for any failure, or suspected failure, to comply with the foregoing conditions.
2.3 Usernames and Passwords. Statement will provide to Customer the access codes, passwords, authentication keys or any other relevant procedures, including Single Sign On (SSO) when a part of the Services, to the extent needed to enable Customer and its Authorized Users access to the Services. Each Authorized User shall be given a unique username and password and Customer shall procure that such Authorized Users will use their unique username and password to access the Services pursuant to this Agreement. Authorized Users may only access the Services during one (1) concurrent login session. Customer acknowledges and agrees that: (a) only Authorized Users are entitled to access the Services with their unique usernames and passwords; (b) Customer may add and enable new Authorized Users at its discretion (c) it will ensure that each unique username and password issued to an Authorized User will be used only by that Authorized User when accessing the Services; (d) Customer is responsible for maintaining the confidentiality of all Authorized Users’ unique usernames and passwords, and is solely responsible for all activities that occur under these Authorized User accounts; and (e) Customer will notify Statement promptly of any actual or suspected unauthorized use of any account, username, or passwords, or any other breach or suspected breach of this Agreement. Statement reserves the right to suspend, disable or terminate any Authorized User’s access to the Services that Statement reasonably determines may have been used by an unauthorized third party. The unique usernames and passwords cannot be shared or used by more than one individual Authorized User to access the Services.
2.4 Customer Data. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Data. Customer will obtain all third party licenses, consents and permissions, and provide all applicable notices, needed for Statement to use, copy, store and process the Customer Data to provide the Services. Customer represents that the Customer Data provided to Statement hereunder does not violate, infringe or misappropriate any third party’s rights. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary consents and rights for Statement to use the Customer Data submitted by or on behalf of Customer or Authorized Users for the purposes set forth in this Agreement.
2.5 Necessary Equipment. Customer must provide all equipment and software necessary for Statement to connect to the Services, including but not limited to, applicable application program interfaces (API) keys that have sufficient bandwidth to facilitate the Services and any and all applicable usernames and passwords required in order for Statement to facilitate the Services. Customer is solely responsible for any fees, including internet connection fees, that Customer incurs when accessing the Services.
2.6 Professional Services. Where the Parties have agreed to Statement’s provision of certain professional services (“Professional Services”), the details of such Professional Services will be set out in the Order. The Order may include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order will incorporate the terms and conditions of this Agreement.
3. Fees, Payment, and Taxes
3.1 Fees. Unless otherwise expressly specified in the applicable Order, the Fees for accessing the Services are payable annually in advance. At the end of each year during the Term, Statement reserves the right to increase the Fees payable for the forthcoming year upon written notice to Customer at least 45 days prior to the commencement of the forthcoming year.
3.2 Invoicing and Payment. All Fees are quoted in United States Dollars and, except as set forth otherwise in this Agreement, are non-refundable. Statement will invoice Customer for the Fees in advance, unless otherwise expressly specified in the applicable Order. Fees are payable 30 days from the date of invoice and will be deemed overdue if they remain unpaid thereafter
3.3 Late Payments. Payments by Customer that are past due will be subject to interest at the rate of 1½% per month (or, if less, the maximum allowed by applicable law) on that overdue balance. Customer will be responsible for any costs resulting from collection by Statement of any such overdue balance, including, without limitation, reasonable attorneys’ fees and court costs. Statement reserves the right (in addition to any other rights or remedies Statement may have) to suspend Customer and all Authorized Users’ access to the Services if any Fees are more than 15 days overdue until such amounts are paid in full.
3.4 Taxes. The Fees do not include taxes, duties or charges of any kind. If Statement is required to payor collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Statement’s income), then such taxes and/or duties shall be billed to and paid by Customer.
3.5 Withholding Payments. If any applicable law requires Customer to withhold amounts from any payments to Statement hereunder, then Customer will perform such obligations consistent with the provisions of this section. Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Statement with tax receipts evidencing the payments of such amounts. The sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Statement receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Statement would have received and retained in the absence of such required deduction or withholding.
4. Term and Termination
4.1 Term. This Agreement will begin on the date specified in the Order and will continue in full force and effect for the Subscription Term specified therein (“Initial Term”). Thereafter, unless otherwise provided in the Order, the Agreement will automatically renew for additional terms of 1 year (“Renewal Term”) unless either Party gives written notice of non-renewal to the other Party at least 30 days prior to the expiration of the then-current term. The Initial Term and the Renewal Term are collectively the “Term”.
4.2 Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party materially breaches this Agreement, and such breach remains uncured more than 30 days after receipt of written notice of such breach; or (b) the other Party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within 60days of commencement; or (c) makes an assignment for the benefit of its creditors.
4.3 Effect of Termination. Upon the earlier of expiration or termination of this Agreement:(a) each Party shall immediately return or, if requested by a Party, destroy all (including any copies of) Confidential Information of the other Party and, upon request, each Party shall provide written certification that the foregoing obligations have been completed; (b) the rights and licenses granted to Customer here under will immediately terminate, Customer will cease use of the Services and Documentation, and return or destroy all copies of the Documentation in its possession/control; (c) the Parties’ rights and obligations under Sections 1, 2.2, 4.3, 5, 7, 8.3, 9, 10 and 11 will survive termination of this Agreement and/or any Order; and (d) termination of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor will termination relieve Customer of its obligation to pay all Fees that accrued prior to such termination.
5. Confidentiality
5.1 Confidential Information. Each Party (“Receiving Party”) acknowledges that it may receive from the other Party (“Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing and financial information, and any other information that could reasonably be considered confidential or proprietary (“Confidential Information”). The terms of this Agreement and any Order, the Statement Technology, and all technical information relating thereto shall be considered Confidential Information of Statement.
5.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or (c)is independently developed by the Receiving Party, its employees or third party contractors without access to or use of the Disclosing Party’s Confidential Information.
5.3 Obligations. During and after the Term, the Receiving Party shall: (a) not use (except for performance of this Agreement) or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party; and (b) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party in confidence.
5.4 Disclosure by Law. Either Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
5.5 Ownership. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except for the limited use right above) operate to transfer, or operate as a grant of any Intellectual Property Rights in the Confidential Information.
6. Data Security and AI Functionalities
6.1 Statement's Commitments. During the Term, Statement shall implement and maintain an information security program that incorporates administrative, technical and physical safeguards designed to: (a) ensure the security and integrity of the Customer Data; (b) prevent unauthorized access to, or disclosure of, the Customer Data; and (c) protect against threats, hazards and security incidents with respect to the Customer Data, in all such cases solely while such Customer Data is stored on the Services.
6.2 Customer Responsibility for Data Security. Customer is solely responsible for maintaining security of its own Customer Data. On the Services, Customer and its Authorized Users will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other usernames and passwords required in order to access the Services. Upon request to Customer's account manager, Statement may facilitate for Customer the ability to export Customer Data from the Services. Customers will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Statement is not obligated to back up any Customer Data; the Customer is solely responsible for creating backup copies of any Customer Data at Customer's sole cost and expense.
6.3 AI Functionalities. As part of the Services, Statement may provide various AI-enabled features and functionalities (“AI Functionalities”). The AI Functionalities could involve integrations with third parties, such as OpenAI. The AI Functionalities may include, without limitation, OpenAI LLC's (“OpenAI”) language-generation models("GPT"). Customer may use the AI Functionalities only in supported geographies. Customers shall obtain and maintain all necessary consents, rights and permits and provide all necessary notices for such use of Customer's information by Statement. In connection with Customer's use of the AI Functionalities, Customer may provide input (“Input”), and receive output generated and returned by the AI Functionalities based on the Input (“Output”). Customers acknowledge that it is not required by law or otherwise to provide any specific Input and that any Input is provided on a voluntary basis. In addition, Customer acknowledges that the Output is subject to, depends on, and is a function of the Input. Customer acknowledges that any Output may not be unique. As between Customer and Statement, Statement and its third-party technology providers and licensors (including, without limitation, OpenAI), as applicable, own and reserve all legal rights, title and interest in and to the AI Functionalities, including all intellectual property and proprietary rights. Customer may not use AI Functionalities to create or share Output in a manner that violates this document and/or any third-party policies, such as OpenAI policies, including, without limitation, OpenAI's Content Policy; Usage Policy, Sharing and Publication Policy, Community Guidelines, and Open AI Terms, which apply to the use of OpenAI's GPT. Customer shall not: (i) use output from the AI Functionalities to develop models that compete with Statement and/or OpenAI; (ii) use the AI Functionalities to process any health information, personal information, financial information or any other category of confidential information or sensitive information, as defined under applicable laws (iii) disclose to any third party information related to the AI Functionalities (iv) use any automated or programmatic method to extract data or output from the AI Functionalities, including scraping, web harvesting, or web data extraction; (v) represent that output from the AI Functionalities was human-generated when it is not or otherwise violate this Agreement, the OpenAI Usage Policies (vi) send or process any personal information of children under 13 or the applicable age of digital consent in connection with the AI Functionalities; or (vii) use any AI Functionalities in violation of applicable laws or third-party rights or for unethical purposes. Customer shall not use any AI Functionalities in violation of applicable laws or third-party rights or for unethical purposes. Except for the rights expressly granted under this document, no other rights, or permissions to access or use any of the AI Functionalities are granted to Customer.
7. Intellectual Property Rights
7.1 Statement Technology. This Agreement does not grant to Customer any ownership interest in the Statement Technology. The Statement Technology is proprietary to Statement and Statement and its licensors have and retain all right, title and interest, including all Intellectual Property Rights therein. Customer acknowledges that any trademarks, trade names, logos, service marks, or symbols adopted by Statement to identify the Services belong to Statement and/or its licensors, and that Customer has no rights therein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Statement Technology, including any right to obtain possession of any source code, data or other technical material relating to the Statement Technology. All rights not expressly granted to Customers are reserved to Statement.
7.2 Customer Data; Confidential Information. The Customer Data and Customer's Confidential Information, and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Data and Customer's Confidential Information not expressly granted to Statement in this Agreement are reserved by Customer. Customer grants Statement a non-exclusive, worldwide, royalty-free and fully paid license: (a) during the Term, to store, process and use the Customer Data as necessary for purposes of providing and improving the Services; and (b) on a perpetual basis, to use the Customer Data in an aggregated and anonymized form to: (i) improve the Services and Statements-related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding usage of the Services, provided, however, that no Customer-identifiable statistics will be disclosed to third parties except with Customer's prior written consent. Statement may generate Performance Data to operate, improve, analyze and support the Services for benchmarking and reporting and for Statement's other lawful business purposes.
7.3 Feedback. Customer hereby grants Statement a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Statement Technology, including for the purpose of improving and enhancing the Services; provided that Customer is not referenced in such use.
8. Warranties; Disclaimers
8.1 Statement Warranties. Statement represents and warrants to Customer that: (a) the Services will conform in all material respects in accordance with the Documentation; and (b) the Services will not knowingly contain any viruses, worms or other malicious computer programming codes intended to damage Customer Data. Customers must report any deficiencies in the performance of any of the foregoing warranties to Statement in writing within 15 days of the non-conformance. Provided the Customer has complied with the foregoing, for any breach of the above warranties, Customer's exclusive remedy, and Statement's entire liability, will be the re-performance of the Services in accordance with such warranties.
8.2 Customer Warranty. Customer represents and warrants that: (a) it has procured all applicable consents required to provide the Customer Data to Statement for the performance of the Services, including in accordance with Section 2.4; and (b) the Customer Data will not: (i) infringe or misappropriate any third party's Intellectual Property Rights; (ii) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage Statement's Technology; and (iii) otherwise violate the rights of a third party. Customer agrees that any use of the Statement Technology contrary to or in violation of the representations and warranties of Customer in this Section 8.2 constitutes unauthorized and improper use of the Statement Technology.
8.3 Disclaimers
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED BY STATEMENT "AS IS" AND "AS AVAILABLE" AND STATEMENT AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED BY COURSE BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE. EXCEPT AS SPECIFIED IN SECTION 8.1, STATEMENT AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE STATEMENT TECHNOLOGY, AND ANY OTHER PRODUCT OR SERVICES FURNISHED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STATEMENT DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, AND STATEMENT GRANTS NO WARRANTY REGARDING THE USE BY CUSTOMER OF THE SERVICES. THE Statement Technology MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STATEMENT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
(b) FROM TIME TO TIME, STATEMENT MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT STATEMENT'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9. Indemnification
9.1 By Statement. Statement will defend at its expense any suit brought against Customer, and will pay any settlement Statement makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services infringe such third party's patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Services becomes, or in Statement's opinion is likely to become, the subject of a claim of infringement ("Infringing Technology"), Statement may, at Statement's option: (a) procure for Customer the right to continue using the Infringing Technology; (b) replace the Infringing Technology with software or software or services which do not materially impair the functionality of the Services; (c) modify the Infringing Technology so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Statement Technology. Notwithstanding the foregoing, Statement will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Services in combination with other products, equipment, software or data not supplied by Statement; or (iii) any modification of the Services by any person other than Statement or its authorized agents. This Section states the sole and exclusive remedy of Customer and the entire liability of Statement, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer. Customer will defend at its expense any suit brought against Statement, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to a third party claim arising out of Customer's breach or alleged breach of Sections 2.4 and 8.2. This Section states the sole and exclusive remedy of Statement and the entire liability of Customer, or any of its officers, directors, employees, shareholders, contractors or representatives, for the claims and actions described herein.
9.3 Procedure. The indemnifying Party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
10. Limitation of Liability
10.1 Types of Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE STATEMENT TECHNOLOGY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL STATEMENT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.2 Amount of Damages. EXCEPT FOR A PARTY'S PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY'S aggregate cumulative liability UNDER THIS AGREEMENT exceed the amount of fees paid OR PAYABLE by Customer TO STATEMENT under the applicable ORDER IN THE 6 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Basis of the Bargain. THE SA LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. The provisions of this Agreement allocate the risks under this Agreement between Statement and Customer. Statement's fees for the services reflects this allocation of risk and the limitation of liability specified herein.
10.4 Exclusions. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY'S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
11. General Provisions
11.1 Relationship Between the Parties. Statement is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have, nor represent to any third party that it has, any authority to act on behalf of the other Party.
11.2 Injunctive Relief. Customer acknowledges that the Services contain valuable Intellectual Property Rights and proprietary information of Statement, that any actual or threatened breach of Section 5 will constitute immediate, irreparable harm to Statement for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If Customer continues to use the Services after its right to do so has terminated or expired, Statement will be entitled to immediate injunctive relief without the requirement of posting bond.
11.3 Export and Import Laws. Customers agree not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Statement, or any products utilizing such data, in violation of the United States export laws or regulations. Further, each Party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Services are provided ("Export Laws") to assure that neither any deliverable, if any, nor any direct product thereof is: (a) exported, directly or indirectly, in violation of Export Laws; or (b) intended to be used for any purposes prohibited by the Export Laws, including without limitation, nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Statement are subject to the export control laws and regulations of the United States, agrees to comply with these laws and regulations, and agrees that it shall not, without prior U.S. government authorization, export, re-export, or transfer Statement products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
11.4 Assignment. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that either Party shall have the right to assign the Agreement, without the prior written consent of the other Party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of such Party's assets. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
11.5 Publicity. Statement may use Customer's name and logo in its Customer list (including on Statement's website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers, provided that at all times Statement shall use Customer's name and logo in accordance with Customer's applicable branding guidelines and Statement may not use Customer's name in any other way without Customer's prior written consent (with email consent deemed sufficient).
11.6 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Statement, by emailing the Statement contact on the Order and if to Customer by emailing the email address listed on the Order, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other Party at the Party's address as listed on the Order by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each Party may change its email address and/or address for receipt of notices by giving notice of such change to the other Party in the manner set forth herein
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