MSA

ChaiOne Inc. MSA version number: A2403764

1. Definitions – General

[Other terms may be defined in-place in the provisions below.]

1.1 Affiliate Definition

(a) One individual or organization (Person) is an Affiliate of another Person if, directly or indirectly via one or more intermediaries, one of those Persons controls (as defined below), or is controlled by, or is under common control with, the other Person.

(b) For purposes of determining Affiliate status, control of an organization refers to the possession of voting control — via, for example, legal, beneficial or equitable ownership, or a voting agreement — of securities of (or other interest in) an organization having at least 50% of the aggregate right to vote for the organization‘s board of directors or comparable governing body.

1.2 Affiliates — Named Affiliate Groups

The following Specifically Named Affiliates are deemed Affiliates of each other without regard to control: NONE NAMED.

1.3 Agreement Definition

Unless the context clearly indicates otherwise, the terms the Agreement and this Agreement refer, collectively, to the following: (1) the Order Form or other agreement document signed by the parties (the Agreement Document); (2) any exhibit, schedule, appendix, or addendum attached to or forming part of the Agreement Document (each, an Additional Document); and (3) any document, or portion thereof, that the Agreement Document or an Additional Document expressly incorporates by reference.

1.4 And/Or Definition

The term and/or, whether or not capitalized, means the inclusive or, as opposed to the exclusive or. EXAMPLE: “The parties expect to meet on Tuesday and/or Wednesday” means that they expect to meet on Tuesday, on Wednesday, or on both days.

1.5 Examples Usage

(a) Examples (and terms such as for example), whether or not capitalized, are used in this Agreement for purposes of illustration, not of limitation, unless another meaning is clear from the context.

(b) For the avoidance of doubt, if in some places the Agreement uses longer expressions such as “by way of example and not of limitation,” such usage does not mean that the parties intend for shorter expressions such as “for example” to serve as limitations unless expressly stated otherwise.

1.6 Including, etc. Definition

(a) The terms including and like words (for example, includeincludes, and included), whether or not capitalized, are to be deemed followed by the phrase without limitation if not followed literally by that phrase.

(b) For the avoidance of doubt, if in some places the Agreement uses longer expressions such as including but not limited to or including without limitation, such usage does not mean that the parties intend for other, shorter expressions such as including to serve as limitations unless expressly stated otherwise.

1.7 Intellectual Property Definition

The term intellectual property, whether or not capitalized, refers broadly to inventions, concepts, techniques, plans, designs, methodologies, procedures, programs, approaches, ideas, know-how, computer software, technology, writings, graphics, other works of authorship, trademarks, service marks, logos, trade names, and (in the case of the last four) the goodwill associated with each.

1.8 Intellectual Property Right Definition

The term intellectual-property right, whether or not capitalized, refers broadly to any intellectual-property right or industrial-property right existing by law at the relevant time anywhere in the world, including without limitation the right to sue for present or past infringement thereof. For the avoidance of doubt, the term includes, for example:

(1) all rights (whether registered or unregistered) in, or arising under laws concerning: trade secrets; confidential information; inventions; patents; trademarks, service marks, and trade names; Internet domain names; copyrights; designs; rights of publicity; and mask works;

(2) any application then pending for such a right, including for example an application for a patent or to register a copyright or trademark;

(3) any right to file such an application; and

(4) any right to claim priority for such an application.

1.9 Order Form Definition

See the beginning of this ChaiOne Customer Agreement; for the avoidance of doubt:

(a) Each Order Form is considered a separate agreement between the parties unless it expressly provides otherwise.

(b) Each Order Form is to be interpreted as incorporating this ChaiOne Customer Agreement by reference.

(c) This ChaiOne Customer Agreement will take precedence over any contrary provision in an Order Form unless the Order Form expressly identifies one or more particular provisions of this ChaiOne Customer Agreement and states that the same is or are being superseded.

1.10 References are to this Agreement

All references to articles, sections, clauses, subsections, subdivisions, paragraphs, exhibits, appendixes, addenda, and the like are to those of this Agreement unless otherwise clear from the context.

1.11 Signature Definition

Signed and like terms such as sign, signing, signature, whether or not capitalized, with respect to a writing, refer to executing or adopting a symbol, or carrying out a process, attached to or logically associated with a writing or other record, with the intent to adopt, accept, or authenticate the record. Such terms encompass, for example, an electronic signature as defined in the [U.S.] Electronic Signatures in Global and National Commerce Act (‘E-SIGN‘), 15 U.S.C. § 7006(5).

1.12 Tax Definition

Tax, whether or not capitalized, refers to any tax, assessment, charge, duty, levy, or other similar governmental charge of any nature, imposed by any taxing authority.

1.13 Tax Definition – Illustrative Examples

Illustrative examples of taxes include the following, whether or not an obligation to pay the same is undisputed and whether or not a return or report must be filed:

(1) all taxes on income, gross receipts, employment, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, sick pay, and disability pay;

(2) all ad valorem, alternative minimum, environmental, license, payroll, registration, social security (or similar), stamp, stamp duty reserve, unemployment, value added, and withholding taxes; and

(3) all other taxes, assessments, charges, customs and other duties, fees, levies or other similar governmental charges of any kind whatsoever, together with

(4) all estimated taxes, deficiency assessments, additions to tax, fines, penalties, and interest.

1.14 Taxing Authority Definition

The term Taxing Authority, whether or not capitalized, refers to any government authority exercising de jure or de facto power to impose, regulate, or administer or enforce the imposition of taxes.

2. Consulting- and Development Services

This article applies only as stated in the “Applicability” section below. 

2.1 Applicability

This “Consulting- and Development Services” article applies only if an agreed Order Form specifies that ChaiOne will perform one or more services for Customer or a Customer Affiliate.

2.2 Services — Definitions

Deliverable” refers to an item required to be delivered to Customer by ChaiOne under an applicable Statement of Work. For the avoidance of doubt, the term does not include Toolkit Items.

Defect” refers to an error or errors in program logic or documentation that cause the Deliverable to materially fail to comply with the specifications set forth in the applicable Statement of Work.

Defect Reporting Period” refers to the period ending 30 days after the Deliverable in question has been delivered to Customer in a form substantially complying with the Statement of Work

Services” refers to services required to be performed by ChaiOne for Customer under an applicable Statement of Work.

Statement of Work” or “SOW” refers to an Order Form that specifies the fees, Deliverables, and Services for a particular project.

Toolkit Items” refers to computer code, processes, concepts, ideas, inventions, algorithms, strategies, procedures, architectures, programs, or other work, that is (1) non-specific, or (2) not unique, to Customer and its business.

2.3 Performance of Services

ChaiOne will perform Services, including creating and delivering Deliverables to Customer, as specified in the applicable Statement of Work.

2.4 Billing for Services

ChaiOne will invoice Customer for Services, and Customer will pay ChaiOne for such Services, as set forth in the applicable Statement of Work.

2.5 Changes to Statements of Work Require Written Agreement

A proposed change to a Statement of Work‘s specification of the scope, cost, or schedule of Services or Deliverables will not be binding on either party unless and until the parties agree to the change in a writing signed by the party sought to be bound; each party specifically agrees not to assert the contrary.

2.6 Changes – Representative Examples

Changes to a Statement of Work requiring the written agreement of the parties include but are not limited to, for example: Changes made to copy after the final copy has been submitted. Changes made to the design once layouts, website design, or site map have been approved. Changes which ChaiOne determines makes the work a “rush” project. Extensive alterations. Changes in objectives on the part of the Customer. New work requested by Customer.

2.7 Changes – Work Suspension Pending Agreement

IF: Customer requests changes to a Statement of Work, or if ChaiOne reasonably deems such changes necessary; THEN: ChaiOne may, in consultation with Customer, suspend work on the relevant Services and Deliverables until the scope, schedule, and price of such changes are agreed upon by both parties.

2.8 Statements of Work – Electronic Signatures

For the avoidance of doubt, electronic signatures are permitted for Statements of Work and change orders to them; such signatures may take the form of, for example, an exchange of emails between individuals having authority to bind the parties.

2.9 No Obligation to Enter Into Statements of Work

For the avoidance of doubt, neither party is obligated to enter into or agree to any particular Statement of Work.

2.10 All Necessary Tasks Are Required

For the avoidance of doubt, ChaiOne will cause the performance of all individual tasks reasonably necessary for the proper rendering of the Services set forth in the Statement of Work, even if one or more such individual tasks is not expressly stated in the Statement of Work.

2.11 ChaiOne‘s Responsibility for Materials, Equipment, etc.

Unless this Agreement or the Statement of Work states otherwise, ChaiOne will arrange, at its own expense, for any necessary acquisition, licensing, installation, maintenance, and support of materials, equipment, supplies, hardware, software, and other items needed to provide the Services.

2.12 Customer Performance of Services

(a) IF: Customer elects in writing to perform itself, or to direct the performance, of some or all of the Services described in a Statement of Work (“Elected Services“); THEN: (1) ChaiOne will provide reasonable cooperation with Customer if Customer so requests; (2) as between ChaiOne and Customer, Customer will be solely responsible for the performance of all Elected Services; and (3) any failure of timely performance of the Elected Services is to be taken into account in determining whether ChaiOne is liable for failure to timely perform other Services dependent on the Elected Services.

(b) For the avoidance of doubt, this clause does not in itself require ChaiOne to share its confidential information with Customer.

2.13 ChaiOne‘s Professional-License Responsibility

Except to the extent (if any) that the relevant Statement of Work provides otherwise, ChaiOne will (1) obtain all professional- and/or occupational licenses necessary for ChaiOne‘s personnel to perform the Services, if any; and (2) defend and indemnify Customer against any third-party claim resulting from its failure to do so.

2.14 Customer‘s Permit Responsibility

Except to the extent (if any) that the relevant Statement of Work provides otherwise, Customer (1) will obtain any permit, license, consent, permission, or the like — other than intellectual-property licenses — that may be required for the performance of the Services and the delivery and/or use of the Deliverables to comply with law; and (2) will defend and indemnify the other party against any claim resulting from its failure to do so.

2.15 IP License Responsibilities

Except to the extent (if any) that the relevant Statement of Work provides otherwise:

(a) ChaiOne will (1) obtain all copyright and trade-secret licenses required for ChaiOne‘s use of ChaiOne-furnished software, data compilations, and similar tools, if any; and (2) defend and indemnify Customer against any claim resulting from ChaiOne failure to do so.

(b) Except as otherwise provided in subdivision (c), Customer (1) will obtain any other license that may be required for the performance of the Services and the delivery and/or use of the Deliverables not to infringe a third party‘s intellectual-property rights; and (2) will defend and indemnify ChaiOne against any claim resulting from its failure to do so.

(c) For the avoidance of doubt, IF: This Agreement contains (1) a warranty by ChaiOne of non-infringement of third-party intellectual-property rights, and/or (2) an obligation on ChaiOne‘s part to defend and/or indemnify Customer against claims by third parties of infringement of such rights; THEN: That warranty or obligation takes precedence over subdivision (b) to the extent of any inconsistency between them.

2.16 Disagreement About Third-Party Approvals

(a) This clause applies if: (1) ChaiOne advises Customer in writing that a particular third-party approval, of any kind, may be necessary for ChaiOne to perform some or all of the Services; but (2) Customer advises ChaiOne in writing that, in Customer‘s view, the approval in question is not required to proceed with the portion of the Services in question.

(b) In any such situation: (1) ChaiOne will not be in breach of this Agreement or Statement of Work if it declines to proceed with performing the relevant portion of the Services; (2) if ChaiOne does so decline, it must seasonably advise Customer in writing that it is doing so; and (3) IF: ChaiOne does proceed without the approval in question; THEN: Customer will defend, indemnify, and hold harmless ChaiOne and its affiliates and the officers, directors, shareholders, members, employees, and agents, from any claim arising from ChaiOne‘s doing so.

2.17 Deliverables – Customer‘s Right to Utilize

Unless expressly stated otherwise in this Agreement or in the relevant Statement of Work, Customer has the right, under any and all intellectual-property rights owned or otherwise assertable by ChaiOne, to utilize any Deliverable internally in Customer‘s business as Customer sees fit.

2.18 Deliverables – ChaiOne‘s Retention of IP Rights

For the avoidance of doubt, ChaiOne retains ownership of any and all intellectual property that it may create in performing its obligations under this Agreement, including without limitation all Toolkit Items, but subject to Customer‘s rights in (i) Deliverables, and (ii) Customer‘s own confidential information and other intellectual property.

2.19 Deliverables – Customer‘s Rights Are Conditioned on Payment

Customer‘s rights in respect of any Deliverable are conditioned on its payment of any amounts required by the applicable Statement(s) of Work for that Deliverable.

2.20 Deliverables – Customer Assignment of Its Rights

Without ChaiOne‘s prior written consent, Customer may assign its rights in any Deliverable under this Agreement (subject to all limitations or restrictions on those rights) only in connection with a sale or other disposition (1) of a physical object that is, or that embodies, a Deliverable; and/or (2) of substantially all the assets of Customer‘s business in which the Deliverable is used.

2.21 Defects in Deliverables – EXCLUSIVE REMEDIES

Unless the relevant Statement of Work expressly provides otherwise, IF: During the relevant Defect Reporting Period, Customer reports to ChaiOne, via a method authorized by this Agreement, that a Deliverable as delivered was not substantially free from Defects; AND: Customer provides ChaiOne with adequate supporting documentation and other information about the Defect and the surrounding circumstances as reasonably requested by ChaiOne; THEN: ChaiOne will – as Customer‘s EXCLUSIVE REMEDIES for the Defect in question – either (1) correct or provide a workaround for the Defect in question within a commercially-reasonable time, not to exceed 30 days without Customer‘s consent, or (2) failing that, refund the fee paid by Customer for Services attributable to that Defect.

2.22 Use of Support-Ticket Defect Reporting System is Required

For Customer to invoke its rights under the “Defects in Deliverables – EXCLUSIVE REMEDIES” clause, Customer must report the putative Defect via ChaiOne‘s standard on-line support request system, or via any other system reasonably designated for that purpose by ChaiOne.

2.23 Defects vs. Desire for Changes to Deliverables

ChaiOne reserves the right to determine, in consultation with Customer, whether any reported problems are Defects or represent a desire for changes to the Deliverables.

2.24 Defects in Hardware or Other Software Not Covered

Unless the relevant Statement of Work expressly states otherwise, ChaiOne is not required to correct, replace, or circumvent any inadequate, defective, or conflicting hardware or third-party software of Customer.

2.25 Customer‘s Personnel-Change Requests – Advance Notice Required

(a) This clause applies if a Statement of Work entitles Customer to make changes to the scope of the work that would affect ChaiOne‘s allocation of personnel to that Statement of Work.

(b) ChaiOne reserves the right to require Customer to give ChaiOne 30 days‘ advance written notice of any such change to the scope of the work.

2.26 Payment Obligation Continues if Work Delayed by Customer

Unless the relevant SOW expressly states otherwise, IF: Customer requests a change in scope of a Statement of Work; AND: ChaiOne has its personnel stop work pending discussion or approval of the requested scope change; THEN: Customer will continue to pay ChaiOne as though the relevant personnel were performing the Services or creating the Deliverables during the period of work stoppage (except that Customer is not obligated to pay for more than 30 days).

2.27 Compliance with Industry Standards Not Guaranteed Unless SOW So States

Unless the relevant Statement of Work expressly provides otherwise: (1) ChaiOne does not guarantee: (A) that the Deliverable complies with any standards and specifications set by any third party (including for example any third party on-line application store such as the iTunes App Store or the Android Market); nor (B) that the Deliverable will be approved by any such third party; and (2) For the avoidance of doubt, Customer‘s obligation to make payments under this Agreement and the Statement of Work is not contingent upon approval of a Deliverable by any such third party.

2.28 App-Store Requirements Changes May Affect SOWs

Customer acknowledges that standards and specifications set by third party on-line application stores change from time to time, and such changes may require changes to the Statement of Work and may increase the cost of creating the Deliverable at Customer‘s expense.

2.29 Hourly Estimates Not Binding

For the avoidance of doubt, ChaiOne‘s estimates of fees and/or expenses for work done on an hourly-rate basis are not binding unless expressly so stated in the applicable Statement of Work.

2.30 Customer Review Obligation

Whenever Customer has the right to approve plans or proposals, or to accept or reject Services or Deliverables, Customer will promptly take such action as may be necessary for such approval, acceptance, or rejection. Customer acknowledges that any failure on Customer‘s part in this regard might prevent ChaiOne from meeting its deadlines under a relevant Statement of Work.

2.31 Customer Coordination of Its Personnel

Customer will coordinate and manage its employees, contractors and agents to guard against their interfering in the performance of the Services.

2.32 Delivery Completion Criteria

Delivery of a Deliverable to Customer is to be considered complete (1) when ChaiOne physically delivers (or causes a third party to deliver) the Deliverable to Customer, or (2) in the case of software or other electronically-stored material, when ChaiOne makes the deliverable available for copying by Customer, for example by downloading it from an Internet site to which Customer has access, or (3) by submission of the Deliverable to an app store.

2.33 Delivery of Master Copy of Deliverable

Unless specifically provided otherwise in an Statement of Work, ChaiOne‘s obligation to deliver an intangible Deliverable (for example, software, a written report, etc.) will be satisfied by ChaiOne‘s delivery of one master copy of that Deliverable (each a “Master Copy”).

2.34 Customer Responsibility for Additional Technology

Customer will purchase and provide licenses to any software or technology necessary for the performance of the Services EXCEPT as expressly stated otherwise in the Statement of Work or in this Agreement.

2.35 Reliance on Customer Data, Reports, etc.

Customer will be responsible for, and ChaiOne may rely upon, the accuracy, timeliness and completeness of all data, reports and other information supplied by Customer.

3. Support and Maintenance Services for Deliverables

3.1 Article Applies if Specified in Order Form

This “Support and Maintenance Services for Deliverables” article applies if an Order Form specifies that ChaiOne will provide support and maintenance services for one or more Deliverables.

3.2 Definitions

Maintenance (whether or not capitalized) refers, as indicated by the context: (1) to support as defined below and/or in an applicable ChaiOne technical-support policy; and/or (2) to Customer‘s entitlement to such support pursuant to an applicable Order Form.

Maintenance Period means a particular time period during which Customer is entitled to Maintenance support; unless otherwise specified in the relevant Order Form, the initial Maintenance Period begins on the effective date of the Order Form and remains in effect for one year.

On maintenance: References to Customer‘s being “on maintenance” for a Deliverable mean that Customer is entitled to Maintenance support for that Deliverable.

3.3 ChaiOne‘s Technical-Support Policy Applies

(a) During any given Maintenance Period, ChaiOne will provide support as stated in (1) ChaiOne‘s technical-support policy attached to this Agreement, if applicable, or if none, (2) ChaiOne‘s technical-support policy in effect – as published on the Web, provided to Customer by ChaiOne, or otherwise announced by ChaiOne – as of the date of the Order Form entitling Customer to Maintenance support for that Maintenance Period.

(b) For the avoidance of doubt, during any given Maintenance Period, ChaiOne will not reduce the overall level of support provided to Customer below the level that was in effect at the beginning of that Maintenance Period unless Customer agrees otherwise in writing.

3.4 Automatic Maintenance Extension (With Opt-Out Right)

(a) Approximately 30 days before the expiration date of the then-current Maintenance Period, ChaiOne will send Customer a written statement of (1) the upcoming expiration date, (2) the maintenance fee due for the next Maintenance Period, and (3) a copy of, or link to, the ChaiOne technical-support policy that would apply to the next Maintenance Period if different from the technical-support policy in effect for the then-current Maintenance Period

(b) Maintenance will be automatically extended for successive one-year periods unless (1) either party sends the other written notice of non-extension not less than 14 days prior to the expiration date of the then-current Maintenance Period; or (2) Customer fails to timely pays the applicable fees, or otherwise fails to remain in compliance with its obligations pursuant to this Agreement, and ChaiOne elects to terminate Customer‘s maintenance; or (3) ChaiOne sends notice to Customer that ChaiOne is discontinuing offering maintenance for the applicable Deliverable.

(c) IF: Maintenance is extended as provided in subdivision (b); THEN: Customer will pay ChaiOne‘s invoice for the extension fee in accordance with the payment provisions of this Agreement or as otherwise agreed in writing by the parties.

(d) For the avoidance of doubt, Customer‘s failure pay any maintenance fee does not constitute a valid notice of to terminate maintenance.

3.5 Maintenance-Reinstatement Fee May Be Required

IF: Customer does not remain continuously on maintenance for a particular Deliverable; THEN: ChaiOne reserves the right, in its sole discretion, to charge a separate maintenance-reinstatement fee as a condition of Customer‘s returning to on-maintenance status.

3.6 Maintenance Terminates with Agreement.

For the avoidance of doubt, Customer‘s maintenance will cease automatically upon any termination of this Agreement or of the relevant Order Form.

3.7 Suspension of Maintenance for Non-Payment

ChaiOne reserves the right to suspend Customer‘s maintenance support if Customer: (1) fails to pay when due any amount due under this Agreement, and/or (2) is otherwise in breach of any obligation pursuant to this Agreement.

4. Open-Source and Restricted Materials

This Article applies only if the relevant Order Form so states.

4.1 Restricted Materials — Definition

(a) For purposes of this Agreement, restricted materials (whether or not capitalized) refers to any computer program code or other materials that are subject to a license from a third party imposing material restrictions or conditions on the use or distribution of affected materials, namely (1) the restricted materials themselves, and (2) other materials incorporating or otherwise based on the restricted materials.

(b) For purposes of illustration, the restrictions or conditions referred to in subdivision (a) include, for example, restrictions or conditions on: (1) making copies of or manufacturing the affected materials; (2) using the affected materials; (3) selling, offering for sale, importing, or otherwise distributing the affected materials; (4) creating derivative works based on the affected materials; or (5) publicly performing or publicly displaying the affected materials.

(c) For the avoidance of doubt, the restrictions or conditions referred to in subdivision (a): (1) include, for example, a requirement that the source code of affected materials be made public if the affected materials are distributed; but (2) do not include a disclaimer of warranties or a limitation of liability.

(d) For the avoidance of doubt, restricted materials include, for example, open-source code released under one or another license such as, for example, any version of the GNU General Public License (GPL), but not the BSD license or the MIT license.

4.2 Restricted Materials – Customer Notification Required

ChaiOne will seasonably advise Customer of any restricted materials that are included or are to be included in any Deliverable.

4.3 Restricted Materials – Customer Compliance with License Required

Customer agrees to comply with any relevant license for restricted materials included in any Deliverable.

Section 5 for ChaiOne SaaS/Hosted Platforms removed intentionally.

Customer agrees to comply with any relevant license for restricted materials included in any Deliverable.

6. Insurance

6.1 Insurance Requirements

(a) During any time in which ChaiOne‘s personnel are on-site at a Customer location or have access to a Customer computer system or network, it will maintain, at its own expense, the following types of insurance: (1)Worker‘s compensation: Statutory limits. If ChaiOne is self-insured, it will provide Customer with a copy of a current self-insured certificate upon Customer‘s written request. (2) Employer‘s liability: Limits of not less than $1,000,000 per occurrence. (3) Commercial general liability (“CGL”) Limits of not less than $1,000,000 combined single limit.(4) Business auto liability: Limits of not less than $1,000,000 per occurrence. (5) Errors & omissions / professional liability: Limits of not less than $2,000,000 (6) Umbrella: $5,000,000.

(b) During any time in which ChaiOne is obligated by this Agreement to maintain insurance coverage, upon Customer‘s written request, ChaiOne will provide Customer with a copy of a certificate of insurance issued by the relevant carrier or carriers evidencing that such coverage is in effect.

7. Business Operations – in General

7.1 Representatives Appointment

Each party, upon request by the other party from time to time, will designate to the other party, in writing (including for example by email), an individual of appropriate seniority who is authorized by the appointing party to act as the appointing party‘s primary contact point for the other party under this Agreement.

7.2 Authoritative Communications

The other party may rely on any communication, by or from an individual who has been so designated as a party representative as provided in the “Representatives Appointment” clause above, as being a communication of the appointing party.

7.3 Site Rules & Network Access – Definitions

The site-rules provisions below apply whenever individuals subject to the control of either party (the Accessing Party) visit physical premises or access a computer system or network (collectively, site) of the other party (the Host Party).

7.4 Compliance with Site Rules

The Accessing Party will cause all such individuals to comply with such reasonable site rules and policies as the Host Party may seasonably communicate in writing to the Accessing Party.

7.5 Site Visits – No Unlawful Discrimination Against Visitors

For the avoidance of doubt, the Host Party may not deny access to the Accessing Party‘s personnel for any reason prohibited by applicable law (for example, antidiscrimination or equal-opportunity law).

7.6 Site Work – Non-Interference

Each party will make reasonable efforts to avoid interfering with the activities of the other party at any site where both parties‘ personnel are present.

7.7 Non-Solicitation of ChaiOne Employees

During the pendency of any Statement of Work and for a period of 12 months thereafter, Customer will not, except with ChaiOne‘s prior written approval, solicit or offer employment, directly or indirectly, to any employee or staff member of ChaiOne who provided services in connection with the Statement of Work, other than an employee or staff member who was involuntarily terminated by ChaiOne.

7.8 Non-Solicitation Obligation – Finder‘s Fee for Breach

IF: Customer breaches the obligation of Section 7.7; THEN: Upon request from ChaiOne, Customer will pay ChaiOne a finder‘s fee equal to two years of the annual compensation of the individual in question at the time of the individual‘s resignation from ChaiOne‘s employment.



8. Invoicing and Payment

8.1 In General

Except as otherwise set forth in the applicable Order Form, Customer will pay each ChaiOne invoice for agreed fees and/or authorized expenses, issued pursuant to an Order Form, within 7 days of receipt of invoice, without setoff.

8.2 Invoice Frequency

Unless the relevant Order Form expressly provides otherwise, ChaiOne may invoice Customer up to twice per calendar month.

8.3 Sales Taxes – Itemization

ChaiOne will do the following, at its own expense, unless (i) the parties agree otherwise in writing in connection with a particular Order Form, or (ii) Customer provides ChaiOne with a valid tax exemption certificate authorized by the appropriate taxing authority:

(1) determine what if any sales taxes, including for example ad valorem taxes, must be paid to an applicable jurisdiction in connection with the Order Form;

(2) separately itemize such sales taxes on the relevant invoice(s) to Customer; and

(3) timely report and remit, to all relevant taxing authorities, all sales taxes determined pursuant to subdivision (1).

8.4 Taxes – Income, Franchise, Etc.

For the avoidance of doubt, each party is solely responsible for payment of taxes based on its income, franchise, or capital.

8.5 VAT and Other Indirect Taxes

If ChaiOne invoices Customer for indirect taxes such as value-added taxes (“VAT”), then at Customer‘s request ChaiOne will make reasonable efforts to provide Customer with copies of invoices or similar documentation in ChaiOne‘s possession for purposes of helping Customer to apply for a refund.

8.6 Invoice Disputes

IF: Customer wishes to dispute an invoice; THEN: Customer will (1) timely pay any undisputed portion; and (2) promptly furnish ChaiOne with a written explanation of the basis for its dispute, together with (where applicable) reasonable supporting documentation.

8.7 Expenses

ChaiOne will invoice authorized expenses without markup unless otherwise stated in the Order Form.

8.8 Direct Billing of Expenses

IF: The expense or charge to any third party provider exceeds the direct-billing threshold amount specified in an Order Form, or US$1,000.00 if no such amount specified; THEN: ChaiOne reserves the right to require that such third party provider bill Customer directly, and Customer will pay such third party provider in full in a timely manner.

8.9 Interest on Past-Due Amounts

If Customer fails to pay any fees or expenses when due, ChaiOne reserves the right to charge Customer (in which case Customer will pay to ChaiOne) interest on such outstanding amounts at the lesser of (i) the maximum interest rate allowed by law, and (ii) 1.5% per month, beginning 30 days after the due date.

8.10 Billing Intervals

ChaiOne may bill Customer from time to time as stated in the Order Form or, if not otherwise provided in the Order Form, at monthly- or other reasonable intervals.

8.11 Suspension of Services for Nonpayment

IF: Customer fails to timely pay any amount invoiced pursuant to an Order Form for 30 days after notice of non-payment from ChaiOne; THEN: ChaiOne may suspend any further performance or rendering of services or access contemplated by the Order Form until the past-due amount is paid in full.

8.12 Payment Obligations Not Contingent on Third-Party Payments

Unless expressly stated otherwise in the Order Form, Customer‘s obligation to pay amounts due pursuant to the Order Form is not contingent upon Customer‘s receipt of payment from any other party.

8.13 Deposits

(a) If a deposit is required pursuant to an Order Form, Customer will deliver the amount of the deposit to ChaiOne within the time specified in the Order Form (two days after executing that Order Form if not otherwise specified).

(b) ChaiOne may commingle any deposit paid by Customer pursuant to an Order Form with deposits from other clients and funds of ChaiOne in the same account.

(c) Any interest accruing on any deposit paid by Customer pursuant to an Order Form will be the sole property of ChaiOne, without credit to any fees owed.

(d) For the avoidance of doubt, Customer does not have the right to unilaterally demand that a deposit be returned unless otherwise indicated in the applicable Order Form.

9. Intellectual Property – In General

9.1 ChaiOne‘s License to Use Customer Materials

IF: Customer provides materials to ChaiOne for use in connection with an Order Form (for example, performing Services pursuant to a Statement of Work or hosting Customer-generated content); THEN: Customer grants to ChaiOne (and its subcontractors, if applicable) a non-exclusive, paid-up, irrevocable, royalty-free, worldwide license to use, to reproduce, to modify, to create derivative works from, and to distribute all such materials provided by Customer solely for the purpose of fulfilling ChaiOne‘s obligations under that Order Form.

9.2 ChaiOne‘s Use of Customer‘s Name and Logo

If so approved in writing by Customer, ChaiOne may display Customer‘s name, logo, and a description of the Deliverable (including hypertext link, if a website) on ChaiOne‘s website, in ChaiOne‘s portfolio, and in any of marketing and advertising materials of ChaiOne, including any copying and distribution thereof.

10.Confidential Information

10.1 Confidential Information Definition

Confidential Information” refers to any and all technical and non-technical information maintained in confidence by a party (the “Disclosing Party”), including for example trade secrets, proprietary information, techniques, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, and formulae related to the current, future and proposed products and services of the Disclosing Party and/or its customers and/or vendors, including, without limitation, information concerning product or process research and development, design details and specifications, engineering, financial data, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans.

10.2 Exclusions from Confidential Information

Notwithstanding the foregoing, information disclosed by a Disclosing Party to another party (the “Receiving Party”) is not Confidential Information if such information:

(1) was known to the public at the time of such disclosure;

(2) becomes known to the public (other than by any wrongful act of the Receiving Party) subsequent to such disclosure;

(3) is disclosed lawfully to the Receiving Party by a third party without an obligation of confidentiality;

(4) is approved in writing by the Disclosing Party for disclosure;

(5) is independently developed by any employee or agent of the Receiving Party who has not had access to or been informed of the information in question; or

(6) is disclosed by or on behalf of the Disclosing Party to a third party without confidentiality obligations comparable to those of this “Confidential Information” article.

10.3 Safeguarding of Confidential Information

Each Receiving Party will safeguard all Confidential Information of the Disclosing Party using at least as great a degree of care as used to maintain the confidentiality of its own Confidential Information of comparable significance, but in no event less than a reasonable degree of care.

10.4 Use- and Disclosure Restrictions

A Receiving Party may not use Confidential Information, either directly or indirectly, other than as authorized in this Agreement or the relevant Order Form.

10.5 Employee Need-to-Know Access Only

Each Receiving Party will provide Confidential Information only to its employees who need to know such information in connection with the Receiving Party‘s performance of its duties or exercise of its rights under the relevant Specified Agreement. Each such employee must be bound by terms and conditions protecting such Confidential Information substantially similar to those of this Agreement.

10.6 Disclosure Pursuant to Subpoena, etc.

In addition, it is not a breach of the obligations of this “Confidential Information” article for a Receiving Party to disclose Confidential Information in response to a subpoena, search warrant, or other legally-enforceable external demand, provided that the Receiving Party notifies the Disclosing Party as soon as possible (to the extent such notification is not restricted by law) and cooperates with the Disclosing Party in attempting to obtain a protective order or similar protection for the information in question.

10.7 Irreparable Harm from Unauthorized Use or Disclosure

Each Receiving Party acknowledges that any disclosure or use of Confidential Information, except as expressly permitted by this Agreement or the relevant Order Form, will cause irreparable injury for which the Disclosing Party may not have an adequate remedy at law. Accordingly, the Disclosing Party may obtain injunctive relief against the breach or threatened breach of the obligations of this “Confidential Information” article, in addition to any other legal remedies that may be available.

10.8 Term of Confidentiality Obligations

The provisions of this “Confidential Information” article will remain in effect indefinitely for information shown to be a trade secret, and for a period of five (5) years from the date of initial disclosure to the receiving party for other information.

11.Third-Party Infringement Claims – Procedure

11.1 Definitions

Accused Item refers to any product or service as to which ChaiOne is required, by this Agreement or an Order Form, to defend and/or indemnity Customer from third-party claims of infringement of intellectual-property rights.

Covered Infringement Claim refers to a claim (other than by an Affiliate of Customer) that an Accused Item infringes an Intellectual Property Right owned or otherwise assertable by the claimant.

Protected Person refers to (i) Customer; (ii) the Affiliates of Customer that are authorized to use the Accused Item, if any; and (iii) the officers, directors, employees, shareholders, and agents (acting in such capacity) of each of them.

Stop-Use Events refers to the following: (1) a court of competent jurisdiction enjoins a Protected Person from using an Accused Item as a result of a Covered Infringement Claim, and ChaiOne is unable to have the injunction stayed or overturned within a reasonable time, not to exceed 30 days without Customer‘s consent; or (2) ChaiOne settles the claim on terms that would require the Protected Person to stop using the Accused Item; or (3) ChaiOne determines, in its reasonable discretion, and so notifies the Protected Person, that the Protected Person should stop using the Accused Item because of the Covered Infringement Claim.

11.2 Defense of Covered Infringement Claims

ChaiOne will, at its own expense, provide a competent defense to any Covered Infringement Claim.

11.3 Stop-Use Remedies

IF: A Stop-Use Event occurs; THEN: ChaiOne will choose and carry out one or more of the following actions, at its own expense, in respect of the relevant Accused Item:

(a) ChaiOne will modify or replace the Accused Item with a non-infringing substitute which, in all material respects, performs the same functions as the Accused Item.

(b) ChaiOne will procure for the Protected Person the right to continue using the Accused Item.

(c) If in ChaiOne‘s reasonable judgment neither of the options in subdivisions (a) and (b) is commercially practicable for ChaiOne, then:

(1) ChaiOne may direct ChaiOne and all Protected Persons to stop using the Accused Item;

(2) IF: ChaiOne elects to proceed as stated in subdivision (c)(1); THEN: ChaiOne will provide Customer with a pro-rata refund of the amount paid by Customer in respect of the relevant Accused Item (excluding fees for already-expired limited-time licenses, maintenance, support, or system access).Any such pro-rata refund will be computed by depreciating the amounts paid over a 36-month period beginning on the Delivery Date (in the case of Software) or on the date of completion of the relevant Services (in the case of a Deliverable).

(3) If Customer is currently on maintenance for the Accused Item, then ChaiOne will also refund any unused maintenance fee that Customer paid for the then-current maintenance period, computed as of the date ChaiOne directs Customer to stop using the Accused Item.

(d) ChaiOne will not be responsible for any infringing use made of the Accused Item after ChaiOne notifies Customer that ChaiOne is proceeding as p beginning a reasonable time after such notification to permit Customer to achieve an orderly transition.

12. Disclaimer of Implied Warranties – In General

12.1 Disclaimer

Except for the warranties expressly stated in a relevant Order Form, ChaiOne DISCLAIMS all representations, warranties, conditions, and terms of quality, express or implied, whether written or oral, with regard to the subject matter of that Order Form; this disclaimer is in addition to any other, more-specific disclaimers elsewhere in this Agreement.

12.2 Disclaimer – Representative Examples

ChaiOne‘s disclaimer of implied warranties extends to, but is not limited to, any implied warranties of merchantability, suitability, title, non-infringement, satisfactory- or good and workmanlike quality, and fitness for a particular purpose or use.

13. Limitations of Liability

13.1 Excluded Damages Definition

For purposes of this Agreement‘s limitation(s) of liability, the term Excluded Damages refers to consequential, indirect, special, punitive, exemplary, or similar damages arising from any breach of this Agreement. The term encompasses, for example, the following:

(1) loss of profits from collateral business arrangements;

(2) damages from business interruption;

(3) loss of use; and

(4) loss of data or privacy or confidentiality.

13.2 Protected Individuals Definition

For purposes of this Agreement‘s limitation(s) of liability, the term Protected Individual, in respect of a party, refers to each individual who at the relevant time is an employee, officer, director, shareholder, general- and limited partner, member, or manager of that party.

13.3 No Liability for Excluded Damages

Except to the extent (if any) expressly provided otherwise in this Agreement, NEITHER PARTY (the Protected PartyNOR ITS PROTECTED INDIVIDUALS WILL BE LIABLE FOR EXCLUDED DAMAGES. 

13.4 Capped Liability for Damages

Except as provided in the “Carve-Outs from Liability Limitations” clause below or elsewhere in this Agreement, NEITHER PARTY (the Protected PartyNOR ITS PROTECTED INDIVIDUALS WILL BE LIABLE, in the aggregate, for damages in excess of the fees paid or owed by Customer to ChaiOne in the 12 months preceding the event giving rise to the claim or group of related claims (the Damages Cap Amount) (or the applicable cap, if this Agreement provides for more than one).

13.5 Carve-Outs from Liability Limitations

Damages arising from the following are not Excluded Damages, nor are they subject to any Damages Cap under the “No Liability in Excess of Damages Cap” clause:

(1) failure to pay amounts due in any transaction contemplated by this Agreement, for example the agreed price of goods or services;

(2) personal injury or death proximately resulting from breach of this Agreement by the Protected Party;

(3) the Protected Party‘s failure to comply with an obligation stated in this Agreement, if any, to defend and/or indemnify another Person against third-party claims — however, a specifically-stated maximum aggregate liability for such defense and indemnity obligations is not considered a Damages Cap, and such maximum aggregate liability will apply to such obligations; or

(4) the Protected Party‘s infringement of any patent, copyright, trademark, or rights in confidential information of another party to this Agreement.

13.6 Broad Effect of Limitations

The parties have specifically agreed that all limitations of liability set forth in this Agreement are to apply: (1) to all claims for damages or other monetary relief, whether alleged to arise in contract, tort, or otherwise, and (2) even if the allegedly-liable party was advised, knew, or had reason to know of the possibility of Excluded Damages and/or of damages in excess of the relevant Damages Cap, if any; and (3) even if a limited remedy fails of its essential purpose.

13.7 Materiality of Limitations

Each party acknowledges that: (1) the Agreement‘s limitations of liability are material provisions of this Agreement; and (2) absent those limitations of liability, the parties would not have entered into this Agreement on the economic terms stated in this Agreement.

13.8 Maximum Validity of Limitations

The parties expressly agree that IF: One or more limitations of liability benefiting a Protected Person under this Agreement is held void or unenforceable under applicable law; THEN: That Protected Person‘s relevant liability is nonetheless to be limited to the greatest extent consistent with that law and with this Agreement.

14. Term; Termination for Breach and Otherwise

Each Order Form is effective as of the last date signed (or as otherwise specified in the Order Form) and continues in effect until termination or expiration as provided in this Agreement or in the Order Form.

14.1 Termination for Breach

Either party may, by delivery of written notice to the other party, terminate a particular Order Form for cause if the other party materially breaches its obligations under the Order Form or this Agreement and fails to cure such breach within 30 days after receipt of written notice of such material breach from the non-breaching party, or, if the material breach cannot reasonably be cured within 30 days, the breaching party fails, within that time, to commence remedial steps to cure the material breach and pursue them thereafter with reasonable diligence.

14.2 Survival of Certain Provisions After Termination

For the avoidance of doubt, the rights and obligations set forth in this Agreement (if any) concerning the following subjects will survive any termination of this Agreement (including for this purpose any expiration of this Agreement): Confidentiality. Indemnification. Insurance requirements. Intellectual-property ownership. Limitations of liability. Remedy limitations. Warranty rights. Warranty disclaimers. Governing law (or choice of law). Forum selection (or choice of forum). Arbitration. Early neutral evaluation. Attorneys‘ fees. Expense-shifting after settlement-offer rejection.

14.3 Payment of Amounts Due After Termination

In the event of termination of an Order Form by either party for any reason set forth in the Order Form or in this Agreement, Customer will pay ChaiOne for all Services performed, and reimburse ChaiOne for non-refundable expenses incurred with Customer‘s authorization, under that Statement of Work, up to the date of termination.

15. General Provisions

15.1 Additional or Different Terms Are Excluded

(a) Neither party is obligated to give effect to Additional Terms, as defined below, unless the requirements of this Agreement to amend this Agreement are satisfied. The term Additional Terms refers to terms in a quotation, purchase order, confirmation of order, shipping manifest, invoice, or similar document that may be provided by a party in connection with a transaction pursuant to this Agreement, where such terms are in addition to or different from those of this Agreement.

(b) For the avoidance of doubt and as illustrative examples, a party is not deemed to assent to Additional Terms by doing one or more of the following pursuant to a previously-formed Order Form: (1) performing one or more actions called for by, or otherwise described in, Additional Terms; (2) shipping an orally-agreed order after receiving a written purchase order containing Additional Terms; (3) paying an invoice containing Additional Terms; and/or (4) accepting or paying for goods or services after receiving a document containing Additional Terms.

15.2 Amendments Must Be In Signed Writings

For an amendment to this Agreement to be effective, it must: (1) be in writing; (2) state or clearly indicate that the provisions of the amendment take precedence over those of this Agreement or, alternatively, the extent to which that is the case; and (3) be signed by an individual having authority to bind the party that is asserted to be bound by the amendment.

15.3 Arbitration

(a) Any controversy, claim, or dispute arising under or relating to this Baseline Agreement, including but not limited to the existence, validity, interpretation, performance, termination or breach thereof that has not been amicably settled between the parties, shall finally be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”).

(b) There will be one arbitrator (the “Arbitration Tribunal”) selected by the AAA in accordance with such rules. The location for the arbitration will be Houston, Texas, and the language of the arbitration shall be English.

(c) The Arbitration Tribunal shall award the prevailing party its reasonable attorney‘s fees, expert witness fees and the losing party shall pay all Arbitration Tribunal and AAA fees (or reimburse the prevailing party for any such fees paid by the prevailing party).

(d) Any arbitration award will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction, in accordance with and governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

(e) Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, may be brought in the state or federal courts located in or having jurisdiction over Harris County, Texas, and each party consents to jurisdiction and venue in such court.

15.4 Assignment Consent Requirement

Neither the Assigning Party, namely each party, nor its then-current successor in interest, may assign this Agreement to any other individual or organization without the express prior written consent of the Consenting Party, namely the other party or its then-current successor in interest, except as expressly otherwise provided in this Agreement.

15.5 Assignment-Consent Exception for Business-Asset Acquisitions

Consent to assignment is not required in connection with a transaction (or series of transactions) in which all the assets of the Assigning Party‘s business to which this Agreement specifically relates are to be acquired by another party, whether the acquisition is expressly described as such or is to occur by operation of law.

15.6 Binding on Parties & Successors & Assigns

(a) Each party acknowledges that it has read the Agreement; understands it; and agrees to be bound by it.

(b) The Agreement is likewise binding on the respective heirs, legal representatives, successors, and assigns of the parties, if any — this subdivision (b), though, is not to be interpreted as one party‘s consent to assignment of this Agreement by another party.

15.7 Data Privacy Breaches on Third-Party Systems

For the avoidance of doubt, ChaiOne is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) that are not owned or operated by ChaiOne.

15.8 Early Neutral Evaluation of Serious Disputes

Either party may submit any dispute that is reasonably likely to become the subject of litigation or arbitration to (nonbinding) early neutral evaluation, in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association then in effect, or such other procedures as the parties may agree.

15.9 Entire Agreement

Each Order Form, together with this Agreement, sets forth the final, complete, exclusive, and binding statement of the agreement of its signatory parties concerning the subject matter of that Order Form. That Order Form supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the signatory parties with respect to that subject matter, all of which are merged into the Order Form.

15.10 Escalation of Disputes Upon Request

(a) The parties will jointly refer any disagreement between them to their respective higher management levels, including executive-level management where appropriate, whenever requested in writing by either party.

(b) Upon a request for escalation, each party will promptly advise the other party in writing of the name and contact information of a senior representative who: (1) has authority to discuss — and, preferably, the authority to settle — the dispute on behalf of the advising party, and (2) is available for the meeting required by subdivision (c) below.

(c) Promptly thereafter, the parties will cause their respective senior representatives:(1) to meet and confer at least once about the dispute, by telephone, or if so agreed, by video conference or in person; and (2) at each such meeting or meetings, to make a good-faith effort to settle the dispute.

(d) The party making the request for escalation will coordinate reasonable meeting arrangements. Each party will be responsible for its own expenses of the senior representatives‘ meeting.

15.11 Feedback and Suggestions to ChaiOne May Be Used Without Obligation

In ChaiOne‘s sole discretion, and without obligation of any kind to Customer or any End User, ChaiOne may use or disclose, as ChaiOne sees fit, any suggestions, comments, feedback, ideas, or other input submitted by Customer or any End User, EXCEPT to the extent, if any, expressly agreed otherwise in writing by the parties.

15.12 Fiduciary- or Agency Relationship Disclaimed

For the avoidance of doubt, no signatory party, in entering into this Agreement, intends to enter into a fiduciary- or agency relationship except to the extent, if any, expressly so stated in this Agreement; each party agrees not to assert otherwise in any forum.

15.13 Force Majeure – Excused Nonperformance

(a) Either party (the Invoking Party) may invoke force majeure to excuse a failure of timely performance, but only if the failure is caused by a Force Majeure Event, defined as one or more events as to which a prudent person in the position of the Invoking Party would not reasonably have been able to (i) anticipate the event or events and (ii) avoid the resulting failure.

(b) For the avoidance of doubt, the Invoking Party will not be liable to any other party for any loss, injury, delay, damages, or other harm suffered or incurred by the other party due to such an excused failure of timely performance.

15.14 Force-Majeure Events – List of Examples

For the avoidance of doubt, force majeure may include one or more of the following categories of events when otherwise eligible under this Agreement: Act of a public enemy. Act of any government or regulatory body, whether civil or military, domestic or foreign. Act of war, whether declared or undeclared, including for example civil war. Act or omission of the other party. Act or threat of terrorism. Blockade. Boycott. Civil disturbance. Confiscation by a governmental authority not resulting from violation of law by the Invoking Party. Court order. Drought. Earthquake. Economic-condition changes generally. Electrical-power outage. Embargo imposed by a governmental authority. Epidemic. Explosion. Fire. Flood. Hurricane. Insurrection. Internet outage. Invasion. Labor dispute, including for example strikes, lockouts, work slowdowns, and similar labor unrest or strife. Law change, including any change in constitution, statute, regulation, or binding interpretation. Legal impediment such as an inability to obtain or retain a necessary authorization, license, or permit from a governmental authority. Nationalization. Payment failure resulting from failure of or interruption in one or more third-party payment systems. Riot. Sabotage. Storm. Supplier default. Telecommunications service failure. Transportation service unavailability. Tornado. Weather.

15.15 Force Majeure – Status Reports Upon Request

(a) If so requested by the other party, the Invoking Party will provide reasonable information, from time to time, about its efforts, if any: (1) to perform its obligations under this Agreement, and/or (2) to remedy or mitigate the effect of the force majeure.

(b) The other party will maintain in confidence all force-majeure status information it receives from an Invoking Party unless and until the information becomes available to the general public.

15.16 Forum Selection

(a) Any action or other proceeding to assert a claim arising out of this Agreement (each, a “proceeding”) may be commenced against a party (the “defendant”) in the court or courts having jurisdiction in Houston, Harris County, Texas (the Forum Location), regardless where the defendant is geographically located or conducts business.

(b) For the avoidance of doubt, this clause does not negate any provision of this Agreement provisions requiring arbitration or other non-judicial dispute resolution procedure.

15.17 Governing Law

Any disputes under this Agreement will be resolved under Texas law without reference to conflict of laws principles.

15.18 Independent Contractors

The parties intend for their relationship to be that of independent contractors, and nothing in this Agreement is to be interpreted as creating any other kind of relationship (such as, for example, an employment relationship) or any other kind of authority as between the parties.

15.19 Independent Contractors – Specific Prohibitions

Except to the extent (if any) expressly stated otherwise in this Agreement or otherwise agreed in writing, no party will hold itself out: (1) as an employee, agent, partner, joint venturer, division, subsidiary, or branch of another party; nor (2) as having authority to bind the other party to any promise or other commitment; representation; warranty; modification of a warranty; waiver; or other term.

15.20 Information Must Be Kept Up to Date

Customer will, on an on-going basis, provide ChaiOne with complete and accurate information about Customer‘s corporate legal name and its address, email address, and phone number, and promptly update such information if it changes.

15.21 Notices

All notices required or permitted by this Agreement must be in writing. Except to the extent, if any, that this Agreement provides otherwise, all notices are effective upon receipt or refusal.

15.22 Notices – Permitted Addresses

Permissible addresses for notice include (1) those stated in this Agreement; and (2) any other address reasonably communicated, unless this Agreement specifically requires notice of any change of address for notice.

15.23 Notices – To Organization

A notice to an organization: (1) must be marked for the attention of a specific individual, office, or position in the organization; and (2) is effective only upon receipt or refusal by an individual who is the organization‘s agent for purposes of receiving communications of the general type sent.

15.24 Notices – by Email

(a) A notice that is delivered by email to a specific email address, but that is not read by any individual accessing that email address after delivery, is nevertheless effective as to that email address if the party being notified has expressly designated the specific email address, in writing, as one to which notices under this Agreement may be sent.

(b) For the avoidance of doubt, the inclusion of an individual‘s email address in contact information for that individual or for a party does not in itself satisfy the express-designation requirement of subdivision (a).

15.25 Notices – Copies to Counsel

In the interest of expediting discussion, each party giving notice under this Agreement is encouraged, but not required, to send a copy of significant notices to the notified party‘s counsel by any reasonable means. A significant notice might be, for example, a notice of breach or of termination.

15.26 Notice by Web-Site Posting

(a) ChaiOne (the Web-Hosting Party) may give any notice under this Agreement by: (1) making the notice available on the Web-Hosting Party‘s Web site, and (2) displaying, while the other party is accessing the hosting party‘s Web site, a suitably-prominent notice message containing either (A) the content of the notice; or (B) an alert that advises of the existence of the notice and contains a link to (or other instructions for accessing) the content of the notice.

(b) Any such notice will be effective as to the other party at such time (if any) as the other party accesses the Web site and is presented with the notice message.

15.27 Other Necessary Actions and/or Documents Upon Reasonable Request

Each party will execute any documents, and take any further actions, as may be reasonably requested by the other party or necessary to carry out the intent and purpose of this Agreement.

15.28 Prohibitions Apply to Attempts, Etc.

The prohibitions and restrictions of this Agreement extend, without limitation, to: (1) attempts to do a prohibited or restricted thing; and (2) inducing, soliciting, permitting, or knowingly assisting anyone else to do, a prohibited or restricted thing.

15.29 Publicity Consent Requirement

Each party (the Publicizing Party) will not issue any press release about, or otherwise publicly disclose the existence or terms of, (i) this Agreement, nor (ii) the parties‘ business relationship contemplated by this Agreement, without the prior written consent of the other party (the Approving Party).

15.30 Redlining Representation

Each party represents that it or its counsel has ‘redlined‘ or otherwise called attention to all changes that it made and sent to the other party in previously-sent drafts of this Agreement, including but not limited to drafts of any attachments, schedules, exhibits, addenda, etc.

15.31 Representations – Reliance Disclaimer

As part of the parties‘ intentional allocation of the risks and benefits associated with this Agreement, each party (the Disclaiming Party) represents and warrants to each other party that, in entering into this Agreement, the Disclaiming Party is not relying on any representation by the other party, other than: (1) the representations and warranties set forth in this Agreement (if any), including for example in the Agreement‘s exhibits, schedules, etc.; and (2) any representations or warranties expressly incorporated into this Agreement by reference.

15.32 Savings Clause

IF: A provision of this Agreement is held invalid, void, unenforceable, or otherwise defective by a tribunal of competent jurisdiction; THEN: (1) All other provisions of this Agreement will remain enforceable in accordance with their terms; AND (2) the provision in question will be deemed modified or, if necessary, severed, but in either case only: (A) as between the parties; (B) in the jurisdiction in question; (C) to the minimum extent necessary to cure the defect; and (D) until such time, if any, as the tribunal‘s holding, in relevant respects, is vacated, reversed on appeal, legislatively overruled, or otherwise set aside.

15.33 Signature – in Counterparts

The Agreement may be signed and delivered in separate counterpart originals; all such counterparts will be deemed to constitute one and the same instrument. Any counterpart may be signed by less than all of the parties provided that each party whose signature is required signs at least one such counterpart.

15.34 Signature – Delivery of Signature Page Only

Delivery of a counterpart original of this Agreement may be effected (for example) by transmitting a signed signature page by FAX, by emailed PDF, or by other electronic transmission means.

15.35 Survival (Enumerated Provisions)

For the avoidance of doubt, the rights and obligations set forth in this Agreement (if any) concerning the following subjects will survive any termination of this Agreement (including for this purpose any expiration of this Agreement): Confidentiality. Indemnification. Insurance requirements. Intellectual-property ownership. Limitations of liability. Remedy limitations. Warranty rights. Warranty disclaimers. Governing law (or choice of law). Forum selection (or choice of forum). Arbitration. Early neutral evaluation. Attorneys‘ fees. Expense-shifting after settlement-offer rejection.

15.36 Technology of Third Parties

For the avoidance of doubt, ChaiOne is not responsible for procuring, maintaining, or ensuring the reliability of any third-party software or equipment used by Customer to connect to the Internet, nor for notifying Customer of available updates or modifications to any of them.

15.37 Third-Party Beneficiaries Disclaimer

Except to the extent (if any) clearly stated otherwise in this Agreement, the parties do not intend for the Agreement to create any right or benefit for any party except themselves.

15.38 Waivers Must Be in Signed Writings

No effect is to be given to any claim that a party waived a right, representation, obligation, or condition (collectively, “term”) stated in this Agreement, or that the party waived a breach of this Agreement, unless the purported waiver: (1) is in writing; and (2) is signed by the waiving party or by an individual authorized to make binding commitments on behalf of that party.

15.39 Waivers – Limited Effect

For the avoidance of doubt: (1) a party‘s waiver of a term or breach of this Agreement will affect only that term or breach, and is not to be deemed a waiver of any other term or breach; and (2) the fact that a party, at a given moment in time, did not enforce one or more terms is not be deemed a waiver by that party of its right to enforce any term at any other time.