SIMETRIC MASTER SERVICES AGREEMENT
BACKGROUND
SimetricTM provides a cloud-based platform to enable software as a service (SaaS) Internet of Things (IOT) / SIM management software solutions as more particularly described on the applicable order (the “Services”). In consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SERVICES
1.1. Use. Subject to the terms and conditions of this Agreement, Simetric hereby grants Customer and its Affiliates a non-exclusive, non-transferable, worldwide, right to access and use the Services for Customer’s and its Affiliates’ business purposes during the applicable Order Term (as defined below). Customer may permit any number of its and its Affiliates’ employees and contractors to access and use the Services to in accordance with the terms herein. For purposes of this Agreement, (i) “Affiliate” mean any entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control, with Customer; (ii) “control” means the power to direct the management or affairs of an entity, and (iii) “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
1.2. Order. Simetric shall provide Customer access to and use of the Services in accordance with the terms of this Agreement and any mutually agreed upon quote or order signed by both parties and identifying the services to be made available by Simetric pursuant to this Agreement and the fees to be paid by Customer for such services (each, an “Order”). In the event of any conflict between this Agreement and an Order, the terms of the Order will control solely for purposes of that Order.
1.3. Implementation. Simetric will perform implementation or customization services for the (the “Implementation”) as specified in a mutually agreed Statement of Work that is attached to the applicable Order (if any) (each, a “SOW”). Except as set forth in the relevant SOW, Customer may modify or terminate any SOW with ten (10) days’ prior written notice to Simetric. Upon such termination, Customer will pay Simetric the fees due under the applicable Order for Implementation satisfactorily completed in accordance with the SOW as of the effective date of termination.
1.4. Administrator Account. Simetric is responsible for creating a(n) Administrator(s) account for Customer and Simetric support. The Customer Administrator(s) is responsible for providing and administering usernames and passwords for all Customer users (the “Account Information”). Each Administrator and Customer user must have a valid username and password for the purpose of accessing the Services. Customer and its Administrators shall keep all Account Information strictly confidential. Account Information may be used only by the assigned Administrators and may not be shared or transferred without Customer’s consent and control. Customer is responsible for any and all activities that occur under all Customer’s accounts. Each party agrees to notify the other immediately of any unauthorized use of Customer’s accounts or other breach of security discovered by that party.
1.5. Training. Simetric shall provide remote phone and web-based training sessions related to the use of the Services to the extent set forth in the applicable Order. Simetric will provide additional training services as mutually agreed by the parties from time to time and subject to payment of Simetric’s then current fees for such training. Customer is responsible for making a good-faith effort to have its designated administrators (“Administrators”) attend all training sessions established by Simetric. Customer can add up to five Administrators and change Administrators at any time from within the Simetric application.
2. RESTRICTIONS
2.1. Except as expressly set forth in this Agreement, Customer shall not, and shall not permit any Administrator, employee, contractor, agent or any other party to: (i) reverse engineer, copy, disassemble or decompile any component of the Services; (ii) interfere in any manner with the operation of the Services or the hardware and network used to operate the Services; or (iii) sublicense any of Customer’s rights under this Agreement, resell the Services, or otherwise use the Services for the benefit of a third party outside of the terms of this Agreement.
2.2. Customer shall not use the Services for any purpose that is unlawful or prohibited by this Agreement, or by any law, regulation, statute, or court order. Customer may not intentionally use the Services in any manner that Customer knows could damage, disable, overburden, or impair any Simetric or subscriber server or network(s) or interfere with any other party’s use and enjoyment of any of the services provided by Simetric to its customers generally. Customer may not attempt to gain unauthorized access to any part of the Services, other accounts, or Simetric computer systems or network(s) , through hacking, password mining or any other means.
3. ownership; Data Rights
3.1. Simetric Technology. Customer acknowledges that Simetric retains all right, title and interest in and to the Services, and all proprietary information and technology used by Simetric or provided to Customer in connection with the Services (the “Simetric Technology”). The Simetric Technology is protected by intellectual property rights owned by or licensed to Simetric.
3.2. Customer Data.
3.2.1. Ownership. Customer owns all right, title and interest (including all intellectual property rights) in and to the data, information, content, and materials (i) uploaded or otherwise made available by Customer or on Customer’s behalf to the Services, or (ii) accessed or processed by Simetric on behalf of Customer (either and collectively “Customer Data”) is the exclusive property of Customer. Customer will also own all reports or other output of the Service (“Output”) except to the extent incorporating any templates or pre-existing materials of Simetric, and Customer may use the Output for any purpose.
3.2.2. Use of Customer Data. Customer hereby grants to Simetric the right to use the Customer Data as necessary for the purpose of providing the Services to Customer. Customer represents and warrants that (i) Customer has all rights necessary to grant Simetric the rights set forth herein, and Simetric’ s exercise of such rights will not require Simetric to provide any notices or obtain any consents of any other person; (ii) the Customer Data, and Customer’s provision, delivery or other disclosure of Customer Data to Simetric does not and will not violate any applicable law, rule or regulation; and (iii) Simetric’s use of the Customer Data as contemplated by this Agreement does not and will not infringe upon, misappropriate, or otherwise violate any third party’s intellectual property, publicity or privacy rights.
3.2.3. Customer / Carrier Data. Customer is solely responsible for the Content of all Carrier Data (as defined below). Simetric has no responsibility or liability for the accuracy of data uploaded to Simetric by or on behalf of Customer or its Carriers (“Carrier Data”). Customer acknowledge that any Customer Data, whether directly or indirectly transmitted through the Services, may affect the accuracy of information made available through Simetric, including the analysis, display, or visualization of Content. Simetric does not guarantee and has no obligation to verify, correct or oversee the accuracy of any Customer Data transmitted from or acquired from the Customer Carrier(s). In the event that inaccurate Data is received and processed by Simetric, Simetric’s sole liability, and Customer’s exclusive remedy, shall be for Simetric to make a good faith effort to correct the affected Data or remove the inaccurate information.
3.2.4. Processing. Customer acknowledges and agrees that it is solely responsible for (i) the accuracy, quality, integrity and legality of all Customer Data provided directly by Customer, (ii) all changes, additions to, or deletions of Customer Data that are made by Customer, and (iii) the security of all Customer Data sent to Simetric by Customer via unsecure or unencrypted methods. In the event Customer sends Customer Data via unsecured channels, Customer hereby consents to Simetric sending the Customer Data via the same channels.
3.3. Aggregated Data. Simetric may access, use and disclose any aggregate, statistical or de-identified data derived from Customer’s access to and/or use of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services, the performance results for the Services and any other aggregated, anonymized, statistical or de-identified data, as may be permitted under applicable law (the “De-Identified Data”), provided that Simetric’s access to, and use and disclosure of, such De-Identified Data will not enable any third party to determine the identity of any individual or the details of any specific transaction included in the De-Identified Data. In addition, Simetric may also access, use and disclose any De-Identified Data when combined or aggregated with de-identified data of other customers of Simetric and nothing herein shall be construed as prohibiting Simetric from utilizing the De-Identified Data for purposes of operating Simetric’s business, provided that Simetric’s access, use or disclosure of De-Identified Data will not enable any third party to determine the identity of any individual or the details of any specific transaction included in the De-Identified Data.
4. Fees; Payment terms
4.1. Payment. Customer shall pay Simetric the fees set forth in any Order (“Fees”) within thirty (30) days of Customer’s receipt of an invoice. Customer may withhold amounts disputed in good faith while the parties attempt to resolve the dispute, and this will not constitute a breach. Any Fees paid by Customer are non-refundable. Billing will commence on the date all functionality of the Services are first accessible to and usable by Customer (“Commencement Date”) with the exception of initial implementation, custom carrier and dedicated instance implementation fees that are billed on the effective date of the applicable Order. Company will have no obligation to pay any fees that Simetric fails to invoice within one hundred twenty (120) days after the fees were incurred. There are no fees or other charges or amounts due to Simetric except as stated in this paragraph.
4.2. Taxes. Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Simetric’s income), fees, duties, and charges arising from the payment of the fees, the provision of access to the Services to Customer and included on Simetric’s invoice.
4.3. Disputed Invoices. If Customer reasonably and in good faith disputes any portion of any invoice issued by Simetric, then Customer will timely pay the undisputed portion of the invoice and, prior to the due date of the applicable invoice, will provide Simetric with written notice specifying the disputed amount and the basis for the dispute in reasonable detail. The parties shall negotiate in good faith to resolve any such dispute as soon as reasonably practicable.
4.4. Late Fees. If any undisputed amount owed hereunder is more than 30 days past due, and Simetric promptly provided written notice of the amount past due, Simetric may impose a late payment fee not exceeding the lesser of 1.5% per month and the maximum amount permitted by law on the undisputed amount past due.
5. Warranty and Disclaimers.
5.1. Representations and Warranties.
5.1.1. Each party represents and warrants to the other that (a) it has the full right and power to enter into and perform under this Agreement; (b) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a party or otherwise bound; and (c) there are no pending or, to its knowledge, threatened claims against such party that would otherwise prevent such party from fulfilling its obligations under this Agreement.
5.1.2. Simetric represents and warrants that: (a) it will provide the Services in accordance with this Agreement and in material conformance with its generally published specifications and the descriptions in the applicable Order Form (the “Documentation”) and any applicable SOW (the “Performance Warranty“); (b) the Service and Simetric’s performance hereunder will comply at all times with all applicable laws, regulations, and orders, including those relating to privacy and data protection (“Laws“); (c) use of the Service in accordance with the terms of this Agreement and any Output will not introduce into any software, hardware, or systems of Customer or its Affiliates any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code, and use of the Service and any Output will not subject Customer to any third party terms or conditions; (d) when used as permitted under this Agreement, the Service (and Customer’s use thereof) does not and will not infringe, violate, or misappropriate the intellectual property rights of any third party; under the Agreement (and Simetric will promptly notify Customer in event of such a claim).
5.2. Remedies. If Customer reports a breach of the Performance Warranty in a timely manner, Simetric will, without charge, correct or repair the Service so that it conforms to the Performance Warranty. If Simetric is unable to make the Service operate as warranted within ten (10) business days after Customer’s notice, then Customer may terminate this Agreement and/or the applicable Order Form and Simetric will refund to Customer any prepaid fees for the terminated period and for the period in which the Service did not meet the warranty.
5.3. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 5 AND ANY ORDER, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
6. IndemniTIES
6.1. By Simetric. Simetric will indemnify, defend and hold harmless Customer and its Affiliates (including its and their respective directors, officers, employees and agents) from and against any and all third party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) (“Claims”) arising from or relating to: (i) any infringement or alleged infringement of any third-party intellectual property right by the Service or Customer’s use of it in accordance with the terms of this Agreement, (ii) any failure to comply with laws or a breach of Section 9 (Data Security), or (iii) any personal injury or tangible property damage caused by the negligence or willful misconduct of Simetric (or its employees, agents and subcontractors). If any portion of the Services becomes, or in Simetric’s opinion is likely to become, the subject of a claim of infringement, Simetric will, at Simetric’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services becomes non-infringing; or (d) terminate this Agreement and/or the affected Order(s) and refund any fees actually paid by Customer to Simetric for the remainder of the then current Order Term, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Simetric shall have no obligation under this section or otherwise with respect to any infringement claim based upon any modification of the Services, excluding modifications caused by normal use of the Services, by any person other than Simetric or its authorized agents. This subsection states the sole and exclusive remedy of Customer and the entire liability of Simetric, or any of the officers, directors, employees, shareholders, contractors, or representatives of the foregoing, for infringement claims and actions.
6.2. By Customer. Customer will indemnify, defend and hold Simetric harmless from and against any Claims arising out of or relating to Customer’s breach or alleged breach of the subsections titled Customer Data or Data Security.
6.3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit, except that the indemnifying party may not settle a Claim without the indemnified party’s prior written consent (not to be unreasonably withheld) if the settlement requires the indemnified party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The Indemnified party may participate in and observe the proceedings at its own cost and expense with counsel of its own choice.
7. Term And Termination
7.1.1. This Agreement commences on the date “Effective Date” and remains in effect until all Orders have expired or have been terminated earlier.
7.1.2. Unless otherwise set forth in the applicable Order, each Order shall commence on the effective date of such Order and continue for a period of three (3) years (the “Initial Term”). Each Order will automatically renew for successive one-year periods (each, a “Renewal Term” and, together with the Initial Term, the “Order Term”), unless either party provides written notice to the other of its intention not to renew the Order at least thirty (30) days prior to the expiration of the then-current Order Term.
7.2. Termination. Either party may terminate this Agreement and/or any then current Order, effective on written notice to the other party, if the other party (i) materially breaches this Agreement, and such breach (a) is incapable of cure, or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.3. Effect of Termination. Upon termination or expiration of this Agreement and/or any then current Order for any reason:
7.3.1. Simetric’s obligation to provide and Customer’s right to access and use the Services will immediately terminate;
7.3.2. within thirty (30) days after the effective date of termination, each party shall comply with the obligations to remove all Confidential Information of the other party, as set forth in the section titled Confidentiality below;
7.3.3. Simetric shall discontinue all use of Customer Data and, at Customer’s sole option and within thirty (30) days after the effective date of termination, either return to Customer or destroy (or permanently erase in the case of electronic files) all copies of Customer Data in its possession and provide Customer a written affidavit certifying compliance with this requirement; and
7.3.4. Customer will remit payment for any outstanding Fees for Services performed prior to the effective cancellation. Furthermore, if this Agreement and/or any Order is terminated by Simetric as a result of breach by Customer, Customer will remit all fees due and to become due during the then current Order Term within thirty (30) days of termination.
7.4. Survival. The sections and subsections titled Fees and Payment Terms, Warranty and Disclaimers, Limitation of Liability, Indemnification, Effect of Termination, Confidentiality, and Miscellaneous will survive expiration or termination of this Agreement for any reason. The sections and subsections titled Insurance and Data Security will survive the termination or expiration of this Agreement for any reason for so long as Simetric has Customer Data and/or Customer’s Confidential Information in its possession, after which time they will expire.
8. Limitation of Liability
8.1. Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER party NOR ITS affiliates OR ITS SUPPLIERS SHALL BE LIABLE TO the other party OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS DUE TO LOSS OF PROFITS, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SIMETRIC’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE ServiceS OR OTHER PRODUCTS OR SERVICES HEREUNDER.
8.2. Amount of Damages. THE MAXIMUM LIABILITY OF either party ARISING OUT OF OR related IN ANY WAY TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO Simetric DURING THE NINETY (90) DAYS PRIOR TO THE DATE OF THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY.
9. dATA SECURITY
9.1. Simetric will not sell, disclose, or share any Customer Data (or any part or derivative thereof) with anyone else. Simetric will implement and maintain industry best-practice information security policies and processes (including technical, administrative and physical safeguards) that prevent unauthorized access to or use or disclosure of the Service or any Customer Data.
9.2. Simetric will use reasonable efforts to notify Customer in writing after the discovery of an actual breach of the security or confidentiality of any Customer Data. This notification will describe the breach, the status of Simetric’s investigation, and, if applicable, the potential number of persons affected. Simetric will be responsible for all costs associated with any security breach (including, if applicable, for notices to and credit monitoring for affected individuals) to the extent Simetric’s acts or omissions are the cause of the security breach. Simetric will not communicate with any third party (other than Simetric’s advisors and insurers) regarding any security breach except as specified by Customer.
9.3. Personally Identifiable Information. Customer is responsible for ensuring the accuracy, completeness, quality, integrity, legality, reliability and appropriateness of all Customer Data, including any Personally Identifiable Information (“PII”) that the Customer may use in connection with the Services. “Personally Identifiable Information” or “PII” means information in any format about an identifiable individual, including, but not limited to name, address, phone number, e-mail address, bank or credit card account number(s), identification number(s), any other actual or assigned attribute associated with or identifiable to an individual and any information that when used separately or in combination with other information could identify an individual). Customer will secure and maintain all rights necessary for Simetric to provide the Services to Customer without violating the rights of any third party or otherwise obligating Simetric to Customer or to any third party. Simetric does not and will not assume any obligations with respect to Customer Data, PII or to your use of the Service other than as expressly set forth in this Agreement or as required by applicable law. Responsibility for ensuring that the Content and data provided by or for Customer (“Customer Data”) to be entered into the Simetric system is accurate and reflects Customer’s requirements lies solely with Customer. Customer has sole responsibility for, and Simetric disclaims all liability for, the Customer Data transmitted by or on behalf of Customer to Simetric.
10. Confidentiality
10.1. Confidential Information. During the Term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure; provided, however, a failure to mark documents as “Confidential” or to reduce oral/visual disclosures to writing will not preclude confidential treatment under this Agreement if such information is disclosed in furtherance of the performance of this Agreement and would reasonably be considered confidential based upon the nature of the information and the circumstances surrounding its disclosure. All Customer Data is, and all Outputs are, Confidential Information of Customer without requirement of marking of any kind. Regardless of whether so marked or identified, the Services, and all enhancements and improvements thereto will be considered Confidential Information of Simetric. Confidential Information excludes information that the Receiving Party already lawfully knew, that becomes public through no fault of the Receiving Party, that was independently developed by the Receiving Party or that was rightfully obtained by recipient from a third party.
10.2. Protection of Confidential Information. The Receiving Party will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party agrees not to disclose Confidential Information except to its Affiliates, employees and agents who need to know it for purposes of this Agreement and have agreed in writing or are otherwise bound by law to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the Receiving Party’s rights and fulfill its obligations under this Agreement. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information and, upon request, shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence; provided, however, that Receiving Party will not be required to destroy or return digitally archived data stored as part of its standard network back-up practices provided that such data is secured, not readily accessible and (i) Receiving Party continues to treat such data in accordance with the obligations of confidentiality set forth in this Agreement, and (ii) Receiving party destroys such data immediately if and when it is reconstituted to a readable format.
11. Miscellaneous
11.1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without regard to its conflicts of laws principles.
11.2. Dispute Resolution. In the event of any dispute arising out of or relating to this Agreement or the transactions contemplated herein (hereinafter referred to as a “Dispute”), the parties agree to work together in good faith to resolve the matter internally by reference to their respective senior management promptly following written notice given by any party to the other party. If the parties are unable to resolve the dispute within 20 days after such notice, either party may pursue its rights and remedies in accordance with applicable law.
11.3. Remedies. Except where an exclusive remedy may be specified, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
11.4. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Without limiting the generality of the foregoing, each party agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any other provision.
11.5. Amendment; Waiver. No modification to this Agreement is valid or binding unless set forth in writing and fully executed by each of the parties to this Agreement. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement cannot be varied or waived by the Parties by any oral agreement or through a course of dealing or conduct or by any equitable principle or other legal doctrine.
11.6. No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, which consent will not be unreasonably withheld, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
11.7. Reserved Rights. Simetric hereby reserves all rights in and to the Services not expressly granted in this Agreement. Nothing in any Order or the Agreement shall limit in any way Simetric’s right to develop, use, license, create derivative works of, or otherwise exploit the Services or to permit third parties to do so.
11.8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.9. Independent Contractors. Customer’s relationship to Simetric is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have and neither party will represent to any third party that it has, any authority to act on behalf of the other.
11.10. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing, including electronic submissions, to the other party at the address listed on most recent Order.
11.11. Communications from Simetric. Simetric may periodically contact Customer or its Administrators for customer service purposes. By accessing the Services, Customer consents to receive such communications. Simetric will not publicly announce this Agreement or the parties’ relationship or use Customer’s name, logo or marks without Customer’s written pre-approval in each case. Simetric may use any feedback or comments provided by Customer for any purpose.
11.12. Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior agreements and discussions (written or oral) between the parties with respect to such subject matter. No invoice, purchase order or online (clickwrap, browse wrap, or other) posted terms of service or privacy policy, or Simetric’s ordering documents, applies to Customer or its users.
