Terms of Service
This TERMS OF SERVICE (the “TOS”) is effective as of the “Effective Date” defined in the Subscriber’s Tethr Subscription Agreement (“SA”) by and between CollabIP, Inc., a Delaware company d/b/a Tethr (“Tethr”) having a place of business at 10900 Research Blvd, Ste 160C, Unit #2065, Austin, TX 78759 and Subscriber (“Subscriber”). Tethr and Subscriber are sometimes referred to individually as a “Party” and collectively as the “Parties”.
1.1. “Affiliates” shall mean any entity that is directly or indirectly controlled by, under common control with, or in control of a Party to this Agreement. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50%) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
1.2. “Agreement Term” shall have the meaning set forth in the SA.
1.3. “Communications” means the Customer call recordings, audio files, text, SMS or chat communications, surveys, cases and associated transcripts, log files and metadata received by Tethr or generated in connection with the Tethr Platform Service.
1.4. “Documentation” shall mean the user guide and other related materials, if any, which Tethr may supply to Subscriber to facilitate use of the Tethr Platform Services.
1.5. “Fees” and/or “Payments” shall have the meaning set forth in each SA.
1.6. “Hosted Services” and/or “Services” shall mean the cloud-based hosted software services and/or applications, including the facilities and environment managed or utilized by Tethr, all other software, and all servers, hardware, networks, equipment, and technology installed or used within such cloud environment to provide access and use of the Tethr Platform Services.
1.7. “Licensed Trademarks” shall mean any and all registered and common law trademarks of Tethr.
1.8. “Subscription Agreement” or “SA” shall mean the agreement and Subscription Order Form to be provided by Tethr to Subscriber.
1.9. “SA Term” or “Term” shall have the meaning set forth in each SA.
1.10. “Security Policies” shall mean Tethr’s most current information security and privacy policies, practices, and procedures as further described herein.
1.11. “Service Level Agreement” or “SLA” shall mean the then standard service level performance standards that Tethr makes available to users of the Tethr Platform.
1.12. “Tethr Platform” includes the features, capabilities, and services as set forth in the SA.
1.13. “Territory” shall mean United States of America unless otherwise noted in the SA.
2.1. General Scope. Tethr will provide Services for Subscriber in accordance with this TOS and the SA.
2.2. Subscription Agreement. A subscription for Services shall be activated upon the signing of a SA by both Parties. The SA shall be governed by these TOS, provided that a SA may vary these TOS with respect to particular Services in accordance with the applicable SA. In the event of any conflict between the terms of a SA and these TOS, the terms of the SA shall prevail.
3. INVOICING AND PAYMENT
3.1. Invoicing. Subscriber shall pay to Tethr all Fees, and reimburse Tethr for all expenses, properly invoiced in accordance with the terms of each applicable SA and any amendments thereto. Tethr shall submit invoices to Subscriber in accordance with the terms of each applicable SA and Statements of Work.
3.2. Payment. Unless otherwise stated in the applicable SA, payments shall be made to Tethr in USD either by mail, ACH, or wire transfer within thirty (30) days of the date of invoice in accordance with the remittance information contained in the invoice. Interest shall accrue at the rate of one and one-half percent (1.5%) per month on any amounts past due. Subscriber shall notify Tethr within ten (10) days of the date of invoice if Subscriber disputes any amount contained in an invoice.
3.3. Taxes. Subscriber shall pay or reimburse all federal, state, and local taxes and assessments (exclusive of taxes on Tethr net income) arising from or measured by amounts payable to Tethr under this TOS, or furnish Tethr with evidence acceptable to the taxing authority to sustain an exemption thereto. If Subscriber is required to withhold any amount for taxes on any payment to Tethr, then the amount of Subscriber’s payment will be automatically increased to offset such amount withheld.
3.4. Subscriber Purchase Orders. Subscriber acknowledges and agrees that if it is Subscriber’s standard practice to issue unsigned purchase orders, such purchase orders are valid and binding. Nothing contained in any purchase order will modify or add to the terms of this TOS.
4. UPGRADES AND UPDATES
4.1. Tethr Upgrades and Updates: Tethr may, during the SA Term, issue upgrades or updates to the Tethr Platform or Hosted services as necessary to support or enhance Tethr performance for all Subscribers. Subscriber will not be required to pay any additional fees for such upgrades or updates that are made available to all Tethr Subscribers. No such upgrade or update will negatively impair the Services provided by Tethr.
4.2. Subscriber Changes, Upgrades and Updates to its Communication Environment(s): The Tethr Platform is configured to work with the one or more of Subscriber’s communication environments (telephony/call recording environment, chat environment, text environment, and case resolution environment (“Customer Communication Environments”)) in existence or use by Subscriber as of the Effective Date. Subscriber will promptly notify Tethr of any changes, updates or upgrades in their Communication Environments from which Tethr receives Subscriber Communications. In the event that Subscriber’s changes, upgrades or updates cause compatibility issues with the Tethr Platform, Subscriber will be responsible for making any modifications to it as necessary to remedy any incompatibilities with the Tethr Platform and/or the Customer Communications Environment(s). Any such modifications shall be made at Subscriber’s expense. Subscriber will assume all cost and liability related to any compatibility issues that result from changes, upgrades or updates in Subscriber Communications Environments environment. Tethr shall not be responsible for any performance issue caused by such change, update, or upgrade made by Subscriber unless mutually agreed to in writing, any disruption of Services that occur as described in this section shall not affect payments made to or due Tethr.
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
5.1. Subscriber Materials. Subscriber owns or has rights to all content, materials and technology supplied by Subscriber to Tethr (“Subscriber Materials”) under individual SAs. Subscriber hereby grants to Tethr a nonexclusive, nontransferable, limited license to use Subscriber Materials provided to Tethr under the terms and conditions of this TOS. Subscriber reserves all other rights with respect to Subscriber Materials. Upon request of Subscriber, Tethr shall destroy or deliver to Subscriber all copies of the Subscriber Materials provided by Subscriber to Tethr that are not actively in use in performing under this TOS. Except as set forth herein, with respect to the foregoing license, Subscriber grants no rights or licenses under its intellectual property rights to Tethr.
5.2. Tethr Platform. As between Subscriber and Tethr, Tethr or its licensors retains all right, title, and interest in and to any intellectual property or proprietary rights in the Tethr Platform, Services and Documentation, and any derivative works created thereof, including, but not limited to, all patent, copyright, trade secret, know-how, trademark and other intellectual property rights associated therewith. Tethr shall be the exclusive owner of any and all intellectual property and proprietary rights in any algorithms, machine learning and other tools created or developed by Tethr in connection with the Tethr Platform and related Services.
Without limiting the generality of the foregoing, Subscriber will not itself, directly or indirectly (a) access the Tethr Platform or use the Services with software or means other than as described in the SA; (b) modify, port, translate, or create derivative works of the Tethr Platform or Services; (c) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Tethr Platform or Services by any means (except to the extent permitted by mandatory laws); (d) sell, lease, license, sublicense, copy, market or distribute the Tethr Platform or Services, except as expressly permitted in this TOS; (e) remove any proprietary notices, labels or marks from the Tethr Platform Services, or Documentation; or (f) release to a third party the results of any benchmark testing of the Tethr Platform or Services. In no event shall anything in this TOS or in Tethr’s conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark, or other intellectual property right not explicitly licensed. All rights not expressly granted to Subscriber under this TOS are reserved by Tethr and/or its licensors.
5.3. Tethr Rights to Use Communications. Subscriber gives Tethr the right, and Tethr has permission to use the Communications as necessary to provide the Services. Tethr and third parties acting under the direction of Tethr may use, compile (including creating statistical and other models), annotate and otherwise analyze the Communications to develop, train, tune, enhance and improve the speech recognition, natural language understanding and other components of the Tethr Platform and Services, including but not limited to the creation of a common data base that includes common words, utterances, and phrases of multiple Tethr customers and that can be used as necessary to enhance and improve the Tethr Platform and Services. Anonymized and aggregated Communications may be used by Tethr to create use cases, success stories and best practices to share with Subscriber and others based on results of Tethr Platform and Services . Tethr may further create aggregated de-identified compilations and analyses of Communications that may be combined with words, phrases and utterances from research, other sources and customers in libraries and categories as necessary to create reports, evaluations, studies, and analyses for the purpose of building and enhancing pre-built libraries, categories, scoring models and algorithms all of which may be included in the Tethr Platform for use with Subscriber and other Tether customers.
Notwithstanding the foregoing, Tethr and Subscriber may upon mutual agreement in a SA or SOW, develop a unique and custom category of Communications that will be for the exclusive use by Subscriber and that will not be shared or disclosed to any other customers.
6. INFORMATION SECURITY, DATA PRIVACY AND COMPLIANCE
6.1. Subscriber Responsibilities. Subscriber is solely responsible for, and Tethr shall have no liability with respect to: (a) the content of all Communications utilized as part of the Tethr Platform and conveyed to users of the Tethr Platform or Services; (b) compliance with all applicable governmental, legal and regulatory requirements and laws concerning the Communications received by Subscriber and utilized with the Tethr Platform; (c) the collection of personally identifiable information of individuals obtained in providing Services or access to the Tethr Platform; (d) all Subscriber branding elements; (e) the recording or logging of calls or sessions as part of the Services or use of the Tethr Platform; and (e) obtaining all necessary consents under applicable laws and regulations in order to allow Tethr to use any personal data with the Tethr Platform in accordance with this TOS and for purposes specified in any SA.
Subscriber is solely responsible for: (a) ensuring that any personal data is collected, processed and disclosed fairly and lawfully by Subscriber when supplying or disclosing such personally identifiable information to Tethr, including but not limited to the obtaining of any consents required from those whose data is collected, and (b) compliance with any and all privacy laws and regulations that apply to the use of personal information that is part of any Communications.
6.2. Security. Tethr shall implement and maintain safeguards that meet then-current and relevant industry standards related to the privacy, security, and availability of Subscriber Communication including, without limitation, maintaining a written information security program that undertakes industry standard measures as reasonably necessary to safeguard and protect the Subscriber Communications from unauthorized access, loss, destruction or use. Tethr may update its Security Policies from time to time but in no event, shall Tethr materially reduce the level of security protection provided Subscriber for the Subscriber Communications.
7.1. Support. Tethr shall provide implementation services, support and training to Subscriber as described in the SA.
7.2. Service Level. Tethr shall provide support for the Services in accordance with the SA and SLA. As provided in the SA, the SLA applies to commercial deployments only and not to evaluation, proof of concept, pilot, optimization, or trial deployments.
8.1. By Tethr. Tethr shall, at its own expense, indemnify and defend or, at its option, settle, any claim or action brought against Subscriber by a third party, during the Term, to the extent it is based on a claim that the Tethr Platform directly infringes any United States patent, copyright or trademark, or misappropriates a trade secret, of such third party. Tethr will indemnify Subscriber against any losses, damages, and expenses that are attributable to such claim or action and are assessed against Subscriber in a final judgment. Tethr shall have the foregoing obligations only if Subscriber provides Tethr with: (a) a prompt written request to undertake the defense in such claim or action; (b) sole control and authority over the defense and settlement thereof; and (c) all available information, assistance, and authority reasonably necessary to settle and/or defend any such claim or action. Tethr shall not be responsible for any attorneys’ fees or other expenses or costs that Subscriber incurs before receipt of Subscriber’s request for indemnification or defense.
8.2. By Subscriber. Subscriber shall, at its own expense, indemnify and defend or, at its option, settle, any claim or action brought against Tethr by a third party, during the Term, to the extent it is based on a claim that is the result of Subscriber supplied Materials, Content, Communications, or a breach of any Subscriber obligations under this TOS or the SA. Subscriber will indemnify Tethr against any losses, damages, and expenses that are attributable to such claim or action and are assessed against Tethr in a final judgment. Subscriber shall have the foregoing obligations only if Tethr provides Company with: (a) a prompt written request to undertake the defense in such claim or action; (b) sole control and authority over the defense and settlement thereof; and (c) all available information, assistance, and authority reasonably necessary to settle and/or defend any such claim or action. Company shall not be responsible for any attorneys’ fees or other expenses or costs that Tethr incurs before receipt of Tethr’s request for indemnification or defense.
8.3. Limited Remedies. If the Tethr Platform becomes, or in the opinion of Tethr, is likely to become, the subject of an infringement claim or action, Tethr may, at its option and in its sole discretion, discharge its obligations under this Section 8 (Indemnification) by: (a) procuring, at no cost to Subscriber, the right to continue using the Tethr Platform; (b) replacing or modifying the Tethr Platform to render it non-infringing, provided there is no material loss of functionality; or (c) if, in Tethr’s reasonable opinion, neither (a) nor (b) above are commercially feasible, terminating the related SA.
8.4. Exclusive Obligation. This Section 8 (Indemnification) states the sole obligation and exclusive liability of each Party (express, implied, statutory or otherwise), and the sole remedy of the other, for any third-party claims or actions of infringement of any intellectual property or other proprietary right.
9. WARRANTY DISCLAIMER
9.1. Services Agreement. Subscriber acknowledges that this TOS is for ongoing services and not for the sale of any product. Tethr represents and warrants that it is authorized to provide the Services and the Services will be provided in accordance with this TOS and as set forth in the SA.
9.2. Disclaimer. Except as otherwise provided in the SA and this TOS, the Tethr Platform and Services are provided on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind. TETHR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9.3. Internet Connections. Tethr does not and cannot control internet connectivity. Subscriber’s connections to the internet and/or to telecommunications networks may be impaired or disrupted independent of Tethr. Although Tethr will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Tethr cannot guarantee that such events will not occur. Accordingly, Tethr disclaims any and all liability resulting from or related to such events.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. The total aggregate liability of either party and their respective officers, agents, suppliers and employees for any and all claims arising under this TOS or otherwise arising from the transactions contemplated herein, regardless of the form of action (including, but not limited to actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the aggregate fees actually paid or payable to Tethr under this TOS during the one year preceding such claim. This limitation of liability is cumulative with all Subscriber’s payments during such one-year period being aggregated to determine satisfaction of the limit. The existence of more than one claim shall not enlarge or extend the limit. The foregoing limitation shall not apply to a party’s obligations of indemnification of this TOS, breach of confidentiality obligations, or the proprietary rights license and restrictions of use.
10.2. No Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, AGENTS, SUPPLIERS AND EMPLOYEES, BE LIABLE TO THE OTHER OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, AGENTS, CUSTOMERS AND EMPLOYEES, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF, OR LOSS OF USE OF, SOFTWARE OR DATA, LOSS OF CUSTOMERS, LOSS OF ANTICIPATED SAVINGS AND LOSS OF PROFITS, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN TORT, CONTRACT OR INDEMNITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 Definition. Subject to the exceptions contained in this Section, “Confidential Information” shall mean all information: (a), including third party information, disclosed by a Party or its Affiliates (the “Disclosing Party”), in whatever tangible form or otherwise, to the receiving Party or its Affiliates (the “Receiving Party”) that is clearly marked “confidential” or with some other proprietary notice, (b) disclosed orally or otherwise in intangible form by the Disclosing Party and designated as confidential or proprietary at the time of the disclosure; and (c) for Tethr, the Tethr Documentation and the Services. Any and all information that Subscriber provides will remain confidential and Tethr may only provide access to Communications to third parties acting under the direction of Tethr in order to fulfill the foregoing use of the Communications, pursuant to confidentiality agreements, or to meet legal or regulatory requirements, such as under a court order or to a government institution if required or authorized by law. Tethr will not use the names of individuals and companies to contact anyone for any reason.
Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it: (i) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party at the time of disclosure without any obligation of confidentiality; (iii) is disclosed with the prior written approval of the Disclosing Party; or (iv) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party. The obligation not to use or disclose Confidential Information will remain in effect until one of these exceptions occurs.
11.2. Permitted Disclosure. Notwithstanding any other provision of this TOS, disclosure of Confidential Information shall not be precluded if such disclosure: (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding Party shall first have given notice to the other Party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this TOS, but only to the extent that any such disclosure is necessary.
11.3 Use and Obligations. The Receiving Party will not use the Disclosing Party’s Confidential Information for purposes other than as provided in this TOS. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, or publication of the Confidential Information to third parties as the Receiving Party uses to protect its own like Confidential Information of a like nature. Confidential Information received by a Receiving Party hereto may be disclosed to and used by such Receiving Party’s employees, agents and contractors in accordance with the terms and conditions of this TOS, and each Party shall be liable for any act or omission by its Affiliates, and its and their respective employees, agents and contractors, which, if performed or omitted by such Party, would be a breach of this TOS. Each Party agrees that its Affiliates, and its and their respective employees, agents, and contractors, shall be bound by the terms of an agreement protecting against unauthorized use or disclosure of Confidential Information that is at least as protective of the Disclosing Party’s rights as this TOS. No Confidential Information shall be disclosed to any person who does not have a need for such information.
11.4. Return of Confidential Information. The Receiving Party shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party in tangible form: (i) upon the written request of the Disclosing Party; or (ii) upon the expiration or termination of this TOS, whichever comes first. In both cases, the Receiving Party shall, upon request, promptly certify in writing that it has complied with the obligations of this Section. Notwithstanding the foregoing, each Party may retain a copy of the Confidential Information in electronic format in accordance with its corporate security and/or disaster recovery procedures.
11.5 Publicity. Subscriber agrees that Tethr may identify Subscriber as a customer publicly, and use Subscriber’s name, logo, and a description of Subscriber’s use case(s) in Tethr’s marketing materials and website, subject to Subscriber’s standard trademark usage guidelines provided to Tethr from time-to-time. The Parties may mutually agree to a press release announcing this Agreement to be issued at a mutually agreed upon time. Tethr will not issue a press release without Subscriber’s prior consent. Either Party may refer to statements made in such press release in subsequent marketing materials and advertisements.
12. GENERAL PROVISIONS
12.1. Survival. Notwithstanding anything to the contrary: Sections 1 (Definitions), Section 5.2 (Tethr Platform), 6 (Information Security, Data Privacy and Compliance), Sections 9 through 12, including all payment obligations incurred prior to or on expiration or termination, shall survive termination or expiration of this TOS.
12.2. Suspension of Services. If: (a) Tethr determines that disruptions to the Services are being caused by Subscriber misuse and such misuse is not cured within 5 business days after receiving written notice from Tethr specifically describing such misuse; (b) unlawful activities are occurring and such actions may result in liability on the part of Tethr; (c) Tethr is prevented from providing the Services by any governmental order, direction of any government agency, or order of a court of competent jurisdiction; (d) Subscriber has failed to suspend the provision of the Services as required by any government, regulatory or other authority or by an order of a court of competent jurisdiction, or (e) overdue amounts are not paid within fifteen (15) days of written demand, then Tethr may suspend the applicable Services immediately.
12.3. Assignment. Subscriber shall not assign or otherwise transfer its rights, obligations or remedies under this TOS, in whole or in part, to a third party unless such assignment is approved in writing by Tethr, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Subscriber may assign its rights hereunder in their entirety pursuant to: (i) a merger with; (ii) the sale of substantially all of its assets to; or (iii) a consolidation with a third party; provided (a) Subscriber provides Tethr with prompt written notice of such sale, merger or consolidation, (b) the assignee agrees to be bound by all terms and conditions set forth by this TOS, and (c) the assignee is not a competitor of Tethr. Tethr shall be free to assign or otherwise transfer its rights and obligations under this TOS, in whole or in part, to a third party, provided that Tethr provides Subscriber with prompt written notice of the assignment.
12.4. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party and not due to its fault or negligence.
12.5. Notices. All notices hereunder shall be sent by the notifying Party, in writing, to the other Party at its address set forth above (or such other address as they may communicate to the notifying Party in writing), to the attention of: Tethr – Legal Department and by email (firstname.lastname@example.org). Notice shall be deemed delivered and effective: (i) when delivered personally, or (ii) five (5) days after posting when sent by certified United States mail (return receipt requested), or (iii) one (1) day after posting when sent by reputable private overnight courier (e.g., DHL, Federal Express, etc.).
12.6. Relationship Between the Parties. In all matters relating to the SA and this TOS, Subscriber and Tethr shall act as independent contractors. Except as may be otherwise expressly permitted hereunder, neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity. Tethr shall at all times have the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be performed by Tethr hereunder unless otherwise provided herein. Tethr shall, at all times, be responsible for the compliance of its third parties involved in the delivery of the services with the terms and conditions of this TOS. Nothing in this TOS shall be construed to create any contractual relationship between Subscriber and any such third parties, nor any obligation on the part of Subscriber, to pay or to ensure the payment of any money due any such third party.
12.7. Governing Law. This TOS shall be governed by the laws of the State of Texas, USA, without regard to the choice of law rules, and Subscriber hereby submits to the jurisdiction of the federal and state courts located in the State of Texas and the applicable service of process.
12.8. Injunctive Relief. Each Party recognizes and acknowledges that any use or disclosure of Confidential Information by the receiving Party in a manner inconsistent with the provisions of this TOS may cause irreparable damage to the disclosing Party for which remedies other than injunctive relief may be inadequate, and the receiving Party agrees that in any request by the disclosing Party to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, the receiving Party will not maintain that such remedy is not appropriate under the circumstances. The Parties further agree that in the event such equitable relief is granted in the United States, they will not object to courts in other jurisdictions granting provisional remedies enforcing such United States judgments.
12.9. Partial Invalidity; Waiver. If any provision of this TOS or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this TOS shall be valid and enforceable to the extent permitted by applicable law. In such event the Party shall use reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. Any deviation by either Party from the terms and conditions required under applicable laws, rules and regulations shall not be considered a breach of this TOS. No failure of either Party to exercise any power or right given either Party hereunder or to insist upon strict compliance by either Party with its obligations hereunder, and no custom or practice of the Party at variance with the terms hereof shall constitute a waiver of either Party’s right to demand exact compliance with the terms of this TOS.
12.10. Entire Agreement; Headings; Counterparts. This TOS, all Statements of Work and SAs issued hereunder, and the exhibits attached thereto, constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the Parties. No addition to or modification of any provision of this TOS shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each of the Parties. The headings to the sections of this TOS are for ease of reference only and shall not affect the interpretation or construction of this TOS.
12.11. Export Controls; Government Use. Subscriber will comply with all applicable export and import laws and regulations and, unless authorized by applicable governmental license or regulation, not directly or indirectly export or re-export any technical information or software subject to this TOS to any prohibited destination. If software or services are being acquired by or on behalf of the U.S. Government or by a U.S Government prime contractor or subcontractor (at any tier), the software, services and related documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101. The software and documentation consist of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein.