Terms of Service for Clients and Respondents of deltPRO (delt LLC)
Effective as of April 3, 2019
PLEASE READ THESE TERMS OF SERVICE CAREFULLY
These terms of service, together with your deltPRO Master Service Agreement (collectively “Agreement”), constitute a contract between you (the “Client”) and us (“delt LLC “or “deltPRO”). It describes the Products and Services we will provide to you, how we will work together, each of our responsibilities, and other aspects of our business relationship. The terms of this Agreement apply to all deltPRO Products and Services. By entering into the Agreement and using deltPRO products or services, you are agreeing to these terms.
1. MASTER SERVICES AGREEMENT
Your deltPRO Master Services Agreement (“Master Services Agreement”) specifies the deltPRO Products and Services for which you have purchased a right to use. The Products and Services are generally purchased as subscriptions, unless otherwise provided in your Master Services Agreement. Our consultation services, including Team Work Style Assessments are not subscription-based, and are purchased on an individual basis, unless otherwise provided in your Master Services Agreement.
In this Agreement, “Products and Services” refers collectively to deltPRO software subscriptions and deltPRO Consulting Services, except where specifically stated otherwise. Any additional products and services we provide to you in the future will also be considered “Products and Services.”
2. SUBSCRIPTION
Except for deltPRO Consulting Services, or as otherwise stated in your Master Services Agreement, we will provide you a subscription to use the Products and Services identified in your Master Services Agreement through our web-based software platform (the “Platform”). Your subscription is non-exclusive, non-transferable, and revocable in accordance with this Agreement.
3. CLIENT GROUP
You may use the Products and Services to assess candidates for employment for the Client Group specified in your Master Services Agreement, and employees of the Client Group, as defined in your Master Services Agreement. Client Group means the branches, divisions, departments, locations, and/or subsidiary companies identified in your Master Services Agreement. If no Client Group is specified, your subscription to use the Products and Services includes your entire organization.
Unless otherwise stated in your Master Services Agreement, you may administer an unlimited number of deltPRO assessments to prospective employees of the Client Group and a limited number of assessments to employees, as outlined in your Master Services Agreement. However, you may not administer deltPRO assessments to employees that are not part of the Client Group, nor to candidates that are being considered for positions outside of the Client Group.
4. TERM AND TERMINATION
4.1 Term of Agreement. This Agreement commences on the Effective Date identified in your Master Services Agreement and continues until all applicable purchased subscriptions have expired or terminated.
4.2 Term of Purchased Subscription. The term of each subscription to use the Products and Services shall be as specified in your Master Services Agreement. Except as otherwise specified in a Master Services Agreement, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any renewal term will be at list pricing in effect at the time of renewal. If you add products during the Term, the fees for the additional products will be pro-rated, and they will renew along with your subscription, unless otherwise indicated in your Master Services Agreement.
4.3 Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (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. Sections 5, 7, 8, 11-14, 16 and 17 will survive termination or expiration of this Agreement.
5. FEES AND PAYMENT
5.1 Fees. You agree to pay all fees specified in your Master Services Agreement. Except as otherwise specified herein or in your Master Services Agreement, (i) fees are based on Products and Services subscriptions purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
5.2 Payment. Unless otherwise provided in your Master Services Agreement, subscription fees are assessed on an annual or monthly basis, and are due on or before the Effective Date and annually or monthly thereafter. If you purchase a subscription to additional deltPRO Products and Services, the amount of the additional Products and Services shall be prorated from the effective date of activation. Payments that are more than 30 days late may incur a penalty interest rate of .5% per month (from the invoice date) of the outstanding balance, plus any fees or expenses incurred by us in the collection process, including reasonable attorney’s fees. Failure to pay invoices when due may result in the suspension or termination of the Products or Services.
5.3 Taxes. Our fees do 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”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, we will invoice you and you will pay that amount unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority.
6. THE PRODUCTS AND SERVICES
6.1 Access to and Use of the Products and Services. Your subscription to use the Products and Services shall be made available to you as a web-based, password-protected service. We try to make the Products and Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
6.2 Your Users. The Products and Services shall be used only by your employees/users. You are responsible for all use of the Products and Services by your users. You are required to have at least one deltPRO User at your company at all times during your subscription term. One deltPRO User must be designated as your “Administrator”. The “Administrator” will have full administrative rights to your account, and will be the individual designated to make account changes. All deltPRO Users shall only use the Products and Services in compliance with the terms of the Agreement and your Master Services Agreement.
7. PROPRIETARY RIGHTS
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder and in your Master Services Agreement, we reserve all right, title and interest in and to the Products and Services, including related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein or in your Master Services Agreement.
Except as otherwise expressly provided herein, delt LLC owns and shall retain all of its right, title and interest in and to the Products and Services, and you shall not make any claim to the contrary. You further acknowledge that the Products and Services have been created, developed and maintained by us at great expense of time and money, such that misappropriation or unauthorized disclosure or use of the Products and/or Services by you or others for commercial gain would unfairly and irreparably harm us, in a manner for which damages would not be an adequate remedy, and you therefore consent to our obtaining injunctive relief to restrain any actual or threatened breach of the Agreement.
8. USAGE RESTRICTIONS
8.1 General Restrictions. You will not (a) make the Products and Services available to anyone other than your employees/users, or use the Products and Services for the benefit of anyone other than you, including, without limitation, for recruitment, placement, consulting, counseling or staffing for any party that is not part of the Client Group, unless expressly stated otherwise by deltPRO in writing, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Products or Services, or any part thereof, (c) use the Products and Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Products and Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Products and Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Products and Services or related systems or networks, (g) permit direct or indirect access to or use of the Products and Services in a way that circumvents a contractual usage limit, or to access or use any of our intellectual property except as permitted under this Agreement or a Master Services Agreement, (h) modify, copy, or create derivative works based on the Products and Services or any part, feature, function or user interface thereof, (i) copy any content therefrom except as permitted herein or in a Master Services Agreement, or (j) disassemble, reverse engineer, or decompile the Products and Services, or any part thereof, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Products and Services, (3) copy any ideas, features, functions or graphics of the Products and Services or (4) determine whether the Products and Services are within the scope of any patent. Any use of the Products and Services in breach of this Agreement or Master Services Agreement, by you or your authorized users that in our judgment threatens the security, integrity or availability of the Products and Services, may result in our immediate suspension of your subscription to use the Products and Services, however we will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to such suspension.
8.2 Legal Restrictions. You may not use the Products and Services if you are legally prohibited from receiving or using the Products and Services under the laws of the country in which you are resident or from which you access or use the Products and Services. The Products and Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Products and Services where your communications would be subject to such laws.
8.3 Competitors. You may not access or use the Products and Services if you are a competitor. In addition, you may not access or use the Products and Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
8.4 Export Restrictions. In accordance with United States export laws, you agree not to export or re-export the Products and Services except in full compliance with all United States laws, rules, decrees, regulations, and executive orders, including without limitation the Export Administration Regulation of the U.S. Department of Commerce and the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Without limitation of the foregoing no Products and Services may be exported or re-exported into (or to a legal permanent resident of) any country to which the United States embargoes goods or to anyone on the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List.
9. CLIENT SUPPORT
9.1 Client Support. email support is included at no additional cost to all clients that have purchased a subscription to use the Products and Services. We accept email support questions 24 Hours per Day x 7 Days per week. We attempt to respond to email support questions within one business day, however, we do not promise or guarantee any specific response time. Support can be obtained by emailing support@deltpro.com.
10. PASSWORDS AND CLIENT RESPONSIBILITIES
10.1 Passwords. It is your responsibility to safeguard your users’ passwords and keep them confidential, and to avoid use of passwords on public computers or in any manner that would allow a third party to access the Products and Services. Your use of your passwords authenticates your users’ identity and verifies the instructions entered for any transaction, and we are entitled to act on transaction instructions received when your passwords are used, regardless of whether use of the password has been authorized by you. You shall notify us right away of any unauthorized use of your users’ identifications and passwords or your account.
10.2 Administrator. The “Administrator” will have full access to all Client Data entered into the Products and Services, and will be responsible for setting and controlling all user permissions for all other users at your organization. The Administrator must be authorized to represent and bind your company, and is your designated point of contact for all data privacy and protection authorizations and permissions.
10.3 Client Systems Responsibility. You are solely responsible for the set-up, maintenance, and security of the computer and online service and/or network connection(s) used for accessing the Products and Services. You acknowledge that frequent, regular software updates for internet browsers, antivirus applications, operating systems, media players, and other communication software are essential to the security and functionality of your connection to the Products and Services. We cannot guarantee that the Products and Services will be compatible with old or outdated internet browsers, and using older or outdated internet browsers may prevent you from accessing the Products and Services, and some features may not function as expected. You shall comply with all applicable federal, state and local laws, rules, decrees, regulations and ordinances (“Laws”) applicable to, and/or affecting your use of the Products and Services, and we shall not have any responsibility relating to you or any of your employees or affiliates therefor including, without limitation, any responsibility to advise you of your responsibilities in complying with any Laws affecting your use of the Products and Services.
11. CLIENT DATA
11.1 Client Data Ownership and Use. “Client Data” means all information that you submit or collect via the Products and Services. As between the parties, you own and retain all rights to the Client Data. This Agreement does not grant us any ownership rights to Client Data.
11.2 Client Data Representations. You represent and warrant that you have obtained all necessary consents or otherwise have the right to disclose such Client Data to, or to cause such Client Data to be stored by, us, and that our processing of the Client Data in the performance of this Agreement shall not violate the rights of any third party.
11.3 Our Use of Client Data. You grant permission to us to use the Client Data as necessary to provide the Products and Services to you and as permitted by this Agreement. If you are using the Products and Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. You grant us permission to access and use the Client Data for the purpose of management and administration, and providing you with assistance and consulting in connection with our Products and Services. We also may collect, store and use anonymized and pseudonymized Client Data and information from the administration of the Products and Services during the term of your Master Services Agreement for scientific research, benchmarking, and in order to improve our business operations and our products. After termination or expiration or your Master Services Agreement, we may continue to use Client Data and information from the administration of the Products and Services for scientific research, benchmarking, and in order to improve our business operations and our products.
11.4 Disclosure Required by Law. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
11.5 Sensitive Information. YOU AGREE NOT TO USE THE PRODUCTS AND SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Special Categories of Personal Data.’
11.6 Client Data Access After Termination. You shall have the right to retain and use all deltPRO assessment reports generated prior to termination or expiration of this Agreement that are in your possession prior to such termination or expiration. For our subscription clients: if you make a written request within ninety (90) days after termination or expiration of your Agreement, we will provide you with temporary access to the deltPRO platform to retrieve, or we will provide you with copies of, all Client Data then in our possession or control. Ninety (90) days after termination or expiation of your subscription, we will have no obligation to maintain or provide you the Client Data and may, unless legally prohibited, delete all Client Data in our systems or otherwise in our control.
12. INDEMNIFICATION AND CONFIDENTIALITY
12.1 Indemnification by Us. We will indemnify, defend and hold you harmless, at our expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against you (and your officers, directors, employees, and agents) by a third party not affiliated with you to the extent that such Action is based upon or arises out of alleged infringement or misappropriation of any patent, copyright, trade secret, proprietary information or intellectual property right by reason of your authorized use of the Products and Services and to defend you at our expense in any suits at law or in equity arising therefrom to which you may be made a party. The foregoing indemnity shall not apply to the extent that the Action is caused by or results from: (a) your combination or use of the Products and Services with software, services, products or information developed by you or any third party, if the Action would not have existed but for such combination or use; (b) unauthorized modification of the Products and Services by anyone other than you or us (or our respective designees) if the Action would have been avoided by use of the unmodified Products and Services; (c) your continued allegedly infringing activity after receiving notice thereof or after being provided modifications, or a new software version or release, that would have avoided the alleged infringement; or (d) your use of the Products and Services in breach of this Agreement or any other documentation provided to you by us. You will: notify us in writing within thirty (30) days of your becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We shall not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
12.2 Indemnification by You. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Products and Services by you, (b) your noncompliance with or breach of this Agreement, (c) your use of third-party products, or (d) the unauthorized use of the Products and Services by any other person using your account. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
12.3 Confidentiality. “Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of your deltPRO Master Services Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
13. PUBLICITY
You grant us the right to add your name and company logo to our customer list and website, unless you ask us not to do so in writing.
14.REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
14.1 Our Warranties. We warrant that during an applicable subscription term (a) we will not materially decrease the overall security of the Products and Services, and (b) we will not materially decrease the overall functionality of the Products and Services. For any breach of a warranty above, your exclusive remedies are those contained herein.
14.2 Our Disclaimers. We do not warrant that the Products and Services will perform in accordance with any specifications, documentation, or other standards, perform in an uninterrupted capacity, be error-free or bug-free, or provide complete or accurate data. We do not make any warranties as to the results to be obtained from the use of our Products and Services. Use of the Products and Services and reliance thereon is at your sole risk. We shall not be liable to you or any other entity or person for your or their inability to use our Products and Services, or for any inaccuracies, errors, omissions, delays, computer viruses or other infirmity or corruption, damages, claims, liabilities, or losses, regardless of cause, in or arising from the use of our Products and Services.
14.3 “As-Is.” Although we will provide guidance in support of your use of the functionality of the Products and Services, our Products and Services are provided on an “as is” basis and without warranty. No warranties, either express or implied, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement, or any other type is provided.
14.4 Liability. In spite of anything to the contrary in this Agreement, delt LLC’s maximum aggregate liability to you related in any way to or in connection with this Agreement, including your use (including use by any member of the Client Group) shall be limited to the amount of fees paid by the Client Group pursuant to this Agreement over the twelve (12) month period immediately preceding the circumstance giving rise to your claim for indemnification. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
15. MODIFICATION OF TERMS
15.1 Terms Updates. We may modify these Terms at any time upon notice to you (which may be by email notice to your Administrator or by posting a notice through the Products and Services or web-based platform used to access the Products and Services); provided, however, that if you do not agree to the modified terms, you shall notify us in writing within thirty (30) days, in which case the previous terms will apply to your use of the Products and Services for the remainder of the then-current Term, after which your right to use the Products and Services shall terminate.
16. FREE TRIALS AND DEMONSTRATION USE
16.1 Free Trials and Product Demonstrations. If you register on our website for a free trial Position Assessment™, or request a demonstration of any of our Products and Services, we may make one or more of our Products and Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Products and Service(s), (b) the end of the demonstration period, or (c) the start date of any deltPRO Master Services Agreement for such Products and Service(s), or (d) termination by us in our sole discretion. Additional trial and demonstration terms and conditions may appear on the trial or demonstration registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
16.2 Free Trial and Demonstration Use Data. ANY DATA YOU ENTER INTO THE PRODUCTS AND SERVICES DURING YOUR FREE TRIAL OR DURING YOUR PRODUCT DEMONSTRATION MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME PRODUCTS AND SERVICES AS THOSE COVERED BY THE TRIAL OR DEMONSTRATION, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL OR DEMONSTRATION PERIOD, IF APPLICABLE. DURING THE FREE TRIAL OR DEMONSTRATION PERIOD THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND deltPRO SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE PRODUCTS AND SERVICES FOR THE FREE TRIAL OR DEMONSTRATION PERIOD. WITHOUT LIMITING THE FOREGOING, deltPRO DOES NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE PRODUCTS AND SERVICES DURING THE FREE TRIAL OR DEMONSTRATION PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE PRODUCTS AND SERVICES DURING THE FREE TRIAL OR DEMONSTRATION PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL OR DEMONSTRATION PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO deltPRO AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE PRODUCTS AND SERVICES DURING THE FREE TRIAL OR DEMONSTRATION PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
ADDITIONALLY, UNDER NO CIRCUMSTANCES SHOULD YOU ENTER, OR CAUSE TO BE ENTERED, ANY DATA OF ANY EMPLOYMENT CANDIDATE, ANY THIRD PARTY, OR ANY EMPLOYEE OR NON-EMPLOYEE, OTHER THAN EMPLOYEES DIRECTLY INVOLVED IN THE PRODUCT DEMONSTRATION OR FREE TRIAL. YOU REPRESENT AND WARRANT TO US THAT YOU HAVE OBTAINED ALL NECESSARY CONSENTS, OR OTHERWISE HAVE A LAWFUL BASIS, TO ENTER, OR CAUSE TO BE ENTERED, ALL DATA ENTERED INTO OUR PRODUCTS AND SERVICES DURING THE PRODUCT DEMONSTRATION OR FREE TRIAL PERIOD.
17. GENERAL PROVISIONS
17.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, USA without regard to its conflict of laws provisions. Each party agrees and consents to the exclusive jurisdiction of the state and federal courts of the State of Minnesota for all purposes and actions relating to this Agreement and further agrees and consents that venue of any action brought hereunder shall be exclusively in the State of Minnesota. If any action is brought to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its attorney’s fees and costs in the same or separate action and any other appropriate relief. If you are located outside of the territory of the United States, you agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
17.2 Entire Agreement. This Agreement (including the Master Services Agreement), along with our Privacy Policy, is the entire agreement between you and us for the Products and Services, and supersedes all other proposals and agreements, whether electronic, oral or written, between us. Unless agreed to in writing, we are not bound by any additional or different terms proposed by you, any acceptance by you, any policy of Client Group governing the purchase of goods and/or services, or your website. Our obligations are not contingent on the delivery of any future functionality or features of the Products and Services or dependent on any oral or written public comments made by us regarding future functionality or features of the Products and Services. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
17.3 Assignment. Unless provided herein, neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, we will refund to you any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17.4 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.
17.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
17.6 Force Majeure. No party to this Agreement will be responsible for failure or delay of performance if caused by: an act of war, hostility, terrorism or sabotage; act of God; natural disaster; or electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
17.7 Waiver. Our failure to enforce our rights under the Agreement at any time for any period will not be construed as a waiver of such rights.
17.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.