Terms of Service
Last Modified: December 2022
These Terms of Service (these “Terms”), together with the applicable Order Form(s) and Statement(s) of Work, each as defined below, referencing these Terms (collectively, the “Agreement”) are made and entered into by and between Allbound, Inc (“Allbound”) and the customer identified in the applicable Order Form or Statement of Work (“Customer”) as of the effective date of the first Order Form or Statement of Work (the “Effective Date”). By executing an order form or statement of work that references this Agreement (as applicable, an “Order Form” or “Statement of Work”), or indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by Allbound, Customer agrees to be bound by the Agreement. Any individual accepting the Agreement on behalf of Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to the Agreement. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE ALLBOUND SERVICES (as defined below).
The parties agree as follows:
1. Allbound Services
1.1. This Agreement governs (a) Customer’s access to and use of Allbound’s proprietary, web-based software solution(s) as described in the applicable Order Form (the “Allbound Services”); and (b) Allbound’s performance and Customer’s receipt of managed services or other professional services as described in the applicable Statement of Work (the “Professional Services”). Allbound grants to Customer and its authorized employees and agents (“End Users”) a limited, non-transferable, non-exclusive right during the term set forth on the applicable Order Form (the “Order Term”) to access and use the Allbound Services for Customer’s business purposes. If the Allbound Services include Allbound Payout Services, the applicable terms are located at: https://www.xtrm.com/web/TermsandConditions.aspx.
1.2. In the event that Customer elects to have Allbound perform any consulting, training or other professional services (“Professional Services”), the parties will enter into a Statement of Work governing the provision of such Professional Services. Each Statement of Work will be subject to the terms and conditions of this Agreement. Each Statement of Work will, at a minimum, include: (a) a description of the specific Professional Services to be provided; (b) the schedule for the performance of the Professional Services; and (c) the fees payable for such Professional Services. To the extent Allbound creates or develops any deliverables arising from or related to the Professional Services, upon Customer’s payment for the applicable Professional Services, and to the extent Customer is not in breach of this Agreement, Allbound grants to Customer a limited, non-transferable, non-exclusive right, during the applicable Order Term, to access and use such deliverables solely for Customer’s business purposes, subject to the use restrictions set forth in this Agreement and/or the applicable Order Form. Customer acknowledges that the deliverables are Allbound’s Confidential Information (as defined below).
1.3. Passwords. Customer is responsible for protecting and safeguarding any passwords, API keys, user IDs or other credentials and login information (collectively, “Passwords“) that have been provided to Customer or that are generated in connection with Customer’s use of the Allbound Services. Customer will not disclose or make available Passwords to any third-party other than to authorized end users and will use best efforts to prevent unauthorized access to, or use of, the Passwords or the Allbound Services. Customer is fully responsible for all activities that occur in connection with the Passwords. Customer will immediately notify Allbound in writing of any unauthorized use of the Allbound Services that comes to Customer’s attention.
2.1. Acceptable Use
Except as expressly authorized by this Agreement, Customer will not: (a) modify, disclose, alter, translate or create derivative works of the Allbound Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Allbound Services (or any components thereof); (c) derive, or attempt to derive, the source code of, or disassemble, decompile, reverse compile, or reverse engineer the Allbound Services or any portion thereof (except to the extent and for the express purposes authorized by any and all applicable federal or state laws (collectively, “Laws”)); (d) use the Allbound Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the Allbound Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the Allbound Services; (g) access the Allbound Services in order to build a competitive product or service, or copy any features or functions of the Allbound Services; (h) interfere with or disrupt the integrity or performance of the Allbound Services; (i) attempt to gain unauthorized access to the Allbound Services or their related systems or networks; (j) disclose to any third party any performance information or analysis relating to the Allbound Services; (k) remove, alter or obscure any proprietary notices in or on the Allbound Services including copyright or trademark notices; or (l) cause or permit any End User or third party to do any of the foregoing. Customer may access the Allbound Services only through interfaces and protocols provided or authorized by Allbound.
Customer’s use of any application programming interfaces (“APIs”) that are included in the Allbound Services or otherwise made available to Customer by Allbound, in each case, may be subject to additional terms and conditions or limitations as set forth on the applicable Order Form. Such limitations may include limitations on the number of calls that Customer is permitted to make to the API or similar usage restrictions. Allbound may utilize technical measures to prevent excess usage and/or stop usage of the API by Customer after any usage limitations are exceeded.
Allbound will use commercially reasonable efforts to provide the Allbound Services in material conformance with the terms and conditions of this Agreement and, at no additional charge, with all updates or modifications to the Allbound Services that Allbound provides its customers with same package at no additional charge. Such updates or modifications will not include new or additional features and functions; provided, however, Allbound may offer to make such new or additional features and functions available to Customer subject to payment of additional fees.
4. Ownership and Reservation of Rights
As between the parties, Customer owns all right, title and interest in and to the Customer Materials. Customer consents to Allbound’s use of and access to the Customer Materials solely to the extent necessary to enable Allbound to provide the Allbound Services to Customer in accordance with this Agreement. For purposes of this Agreement, “Customer Materials” means any and all data, text, multimedia, graphics, audio, video, and other information or content provided by Customer to Allbound for use with and to display through the Allbound Services.
As between the parties and subject to the grant of rights in Section 1 of this Agreement, Allbound and its licensors own all right, title and interest in and to the Allbound Services (and any and all modifications to or derivative works of the Allbound Services) and any and all intellectual property rights embodied in the foregoing, as the same may be modified or enhanced at any time during or after the Subscription Term (collectively, the “Allbound IP”). Subject to the limited license above and as between the parties, Allbound owns and will continue to own all right, title and interest in and to all such deliverables and all discoveries, inventions, developments, improvements, works of authorship, information, data, analysis, know-how, ideas, technology, materials, and other work product arising out of or related to the Professional Services, together with all related Intellectual Property Rights therein. Without limiting the foregoing, Allbound may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Allbound Services and the Professional Services.
4.3. Reservation of Rights
Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
4.4. Third Party Providers
Customer acknowledges that the Allbound Services (including the Customer Materials) are hosted and processed on a network owned and maintained by a third-party services provider. The Allbound Services may contain or otherwise use certain third-party software.
5. Fees and Payment Terms
The fees for the Allbound Services and Professional Services are set forth in the applicable Order Form or Statement of Work (the “Fees”). Unless otherwise expressly specified in the applicable Order Form or Statement of Work, Customer will pay all Fees within 30 days of the date Allbound’s invoice to Customer. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at Allbound’s applicable package list price in effect at the time of the commencement of the applicable renewal term. All Fees will be paid: (a) by check or bank wire transfer, in immediately available funds to an account designated by Allbound or credit card, in accordance with Section 5.3; and (b) in U.S. Dollars.
5.2. Late Fees
If any amounts invoiced hereunder are not received by Allbound by the applicable due date, then such amounts shall accrue interest at the rate of 1.25% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
All Fees are exclusive of any foreign or domestic sales taxes, withholding taxes, use taxes and any other taxes and charges of any kind imposed by any federal, state, local or foreign governmental entity (other than taxes based on Allbound’s income), and Customer is solely responsible for the payment thereof. Allbound will not invoice Customer, and Customer will not pay, for sales, use, or excise taxes if Customer provides Allbound with certificates or other evidence supporting the applicable tax exemptions.
5.4. Payment Card Terms
By providing Allbound with credit card information (including account number, expiration date, card verification code, and billing address), Customer represents and warrants that all such information is complete and accurate and authorizes Allbound to charge such credit card for all Fees that are due and payable hereunder. Allbound will initiate periodic charges to credit card for all Fees incurred during the applicable Order Term. Customer’s authorization of such recurring charges will remain effective for the duration of the Order Term, unless Customer notifies Allbound in writing that Customer revokes such consent. Customer further authorizes Allbound to receive updated credit card account information from the issuer of the credit card.
6. User Data and Security
6.1. Anonymous Usage Data
Allbound may monitor use of the Allbound Services by its customers generally and use technical and meta data about Customer’s use of the Allbound Services gathered in an aggregate and anonymous manner in order to improve the Allbound Services. Allbound may use, sell, and publish such information, provided that such information does not identify Customer or any Customer Material in any way. For clarity, any data Allbound provides to third parties will only be in an aggregated and anonymous manner with sufficient other customer information such that Customer may not be identified or discovered via analysis on the aggregated data.
Allbound will use commercially reasonable efforts to prevent any unauthorized use, access, processing, destruction, loss or disclosure of any Customer Materials stored or processed by the Allbound Services. In the case of a confirmed unauthorized use, access, processing, destruction, loss or disclosure of any such Customer Materials by a third party (a “Security Incident”), Allbound will notify Customer after Allbound becomes aware of the Security Incident.
Customer shall not process via, or submit to, the Allbound Services any Customer Materials that include any: (a) “personal health information,” as defined under the Health Insurance Portability and Accountability Act; (b) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (c) financial account information, including bank account numbers; (d) payment card data, including credit card or debit card numbers; (e) biometric information, such as fingerprints or voiceprints; or (f) “sensitive” personal data, as defined under the applicable General Data Protection Regulation, about residents of Switzerland and any member country of the European Union or the United Kingdom, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or health-related data, sexual life, or sexual orientation.
“Confidential Information” means all non-public information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) related to technical, commercial, financial, employee, or planning information disclosed in connection with this Agreement and is (A) identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (B) disclosed in non-tangible form, identified as confidential at the time of disclosure, summarized in a writing labeled as “confidential”, and delivered to the Receiving Party within 15 days after disclosure; provided, however, a failure to mark information as “Confidential” or to reduce oral/visual disclosures to writing will not preclude confidential treatment under this Agreement if such information would reasonably be considered confidential based upon the nature of the information and the circumstances surrounding its disclosure. Confidential Information includes the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. Confidential Information does not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
7.2. Use and Disclosure
The Receiving Party will maintain in confidence, during the Subscription Term and for a period of three (3) years thereafter, the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but at least reasonable care. In addition, the Receiving Party will only disclose Confidential Information disclosed by the Disclosing Party to its and its affiliates and their respective directors, officers, employees and contractors who have a need to know such Confidential Information in connection with this Agreement and only if such affiliates, directors, officers, employees and contractors are bound by confidentiality obligations no less restrictive than the non-disclosure obligations contained in this Section 7.
Customer acknowledges that any suggestions, comments or other feedback provided by Customer to Allbound with respect to Allbound, the Allbound Services or the Professional Services (“Feedback”) may be used by Allbound for the purpose of optimizing, improving, enhancing or creating derivative products. Allbound shall have no obligation to compensate Customer and shall not identify Customer as the source of such Feedback.
7.4. Injunctive Relief
The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party may result in irreparable injury to the Disclosing Party, which injury may not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.
7.5. Data Protection
Each party shall at all times during the term of this Agreement comply with all applicable legislation pertaining to data protection, data privacy, data retention and/or data security (including the EU/UK GDPR and the California Consumer Privacy Act) and all associated codes of practice and other guidance issues by any applicable data protection authority (“Data Protection Legislation”). The EU/UK GDPR means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the “EUGDPR”); (ii) the EU GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2018 (the “UK GDPR”); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iv) any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii) or (iii); in each case as may be amended or superseded from time to time. To the extent applicable under the Data Protection Legislation, each party will obtain and maintain all appropriate consents, registrations required in order to allow that party to perform its obligations under this Agreement.
8. Representations, Warranties and Remedies
8.1. General Representations and Warranties
Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; and (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement.
8.2. By Allbound
Allbound represents and warrants that: (a) the Allbound Services will materially conform to the applicable specifications set forth in the applicable Order Form (if any) and to the documentation provided by Allbound; and (b) it will perform the Professional Services in a professional and workmanlike manner by qualified personnel, all in accordance with the applicable Statement of Work.
If Allbound breaches the warranties provided in Section 8.2, Allbound’s sole liability and Customer’s exclusive remedy is for Allbound to correct or re-perform any defective Allbound Service at no additional cost to Customer. If Allbound is not able to correct or re-perform in a reasonable period of time not to exceed thirty (30) days, Customer may notify Allbound of its intent to terminate the affected Allbound Services. Upon receipt of such notice, Allbound will refund of the unearned portion of any unearned Fees prepaid for the Allbound Services.
8.4. By Customer
Customer represents, warrants and covenants that Customer has obtained all rights and permissions necessary to provide the Customer Materials to Allbound for use as permitted under this Agreement.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8, EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THIS AGREEMENT, THE ALLBOUND SERVICES, THE PROFESSIONAL SERVICES AND ANY THIRD PARTY SOFTWARE OR SERVICES PROVIDED BY ALLBOUND UNDER THIS AGREEMENT, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE; OR (C) WARRANTIES OF NONINFRINGEMENT. THIS DISCLAIMER AND EXCLUSION APPLY EVEN IF THE EXPRESS WARRANTY AND EXCLUSIVE REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
9. Indemnification Obligations
9.1. By Allbound
Allbound will defend, indemnify and hold harmless Customer and its directors, officers, End Users. Employees and agents (collectively, the “Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings and any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) alleging (i) that the Allbound Services, when used as permitted under this Agreement, infringe any Intellectual Property Rights of any third party; and/or (ii) breach applicable law by Allbound in the performance of this Agreement. In the event of a claim pursuant to this Section 9.1(i) Allbound will, at its option and expense: (a) obtain for Customer the right to continue to use the Allbound Services in accordance with this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the Allbound Services to make them non-infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, Allbound may, upon notice to Customer, terminate this Agreement, and refund the unearned portion of any Fees previously paid to Allbound. Allbound’s indemnification obligations do not extend to claims arising from or relating to: (i) any combination of the Allbound Services (or any portion thereof) by any Customer Indemnitee with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (ii) any modification to the Allbound Services by any Customer Indemnitees where the infringement would not have occurred but for such modification; (iii) the use of the Allbound Services by any Customer Indemnitee in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (iv) the continued use of the Allbound Services after Allbound has provided substantially equivalent non-infringing software or service. The indemnity provided in this Section 9.1 and the foregoing remedies constitute Allbound’s sole liability and Customer’s exclusive remedy in the event of a claim pursuant to this Section 9.1.
9.2. Customer Indemnity
Customer will defend, indemnify and hold harmless Allbound and its directors, officers, employees and agents (collectively, the “Allbound Indemnitees”) from and against any third party claims and indemnify Allbound Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of, based on or related to (a) Customer’s use of the Allbound Services; and/or (b) any claim that the Customer Materials infringes any Intellectual Property Rights of any third party; and/or (c) the gross negligence or willful misconduct of Customer.
The indemnifying party’s indemnification obligations under this Section 9 are conditioned upon the indemnified party: (a) giving prompt written notice of the claim to the indemnifying party once the indemnified party becomes aware of the claim (provided that failure to provide prompt written notice to the indemnifying party shall not alleviate an indemnifying party’s obligations under Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related claims); (b) granting the indemnifying party sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the claim; and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the claim. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification by the indemnifying party) without the indemnified party’s written consent.
10. Limitation of Liability
EXCEPT FOR EACH PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO ALLBOUND DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT UNDER WHICH THE DAMAGES AROSE.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS DO NOT APPLY TO CUSTOMER’S OBLIGATIONS TO REMIT ALL AMOUNTS DUE AND OWING UNDER THIS AGREEMENT.
FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, ALLBOUND WILL NOT BE LIABLE FOR ANY BREACH OF ANY SERVERS OR SYSTEMS, ANY HACKING, OR ANY UNAUTHORIZED DISCLOSURE OR USE OF, OR ACCESS TO, ANY CUSTOMER IP (IN ANY MEDIUM), UNLESS SUCH OCCURS AS A DIRECT RESULT OF ALLBOUND’S BREACH OF ANY OF ITS SECURITY OBLIGATIONS AS SET FORTH IN SECTION 6.2 (SECURITY).
11. Term, Termination and Effect of Termination
11.1. Term and Termination
The term of the Agreement will commence on the Effective Date and will continue for so long as there is a then-current Order Form or Statement of Work (the “Subscription Term”). The effective term of each Order Form and Statement of Work will be set forth therein (the “Order Term”). Either party may terminate this Agreement and/or any then current Order Form or Statement of Work for cause if the other party breaches this Agreement or the applicable Order Form or Statement of Work and does not remedy such failure within 30 days after its receipt of written notice of such breach.
Allbound may suspend access to the Allbound Services at any time if Allbound reasonably determines that (a) one or more of Customer’s
payments are ten (10) days or more past due and Allbound has notified Customer of Customer’s payment default and Customer has failed to remit the payment; (b) the Allbound Services are being used by Customer in violation of this Agreement or applicable Law; (c) Customer has submitted fraudulent or inaccurate information to Allbound; (d) Customer’s use of the Allbound Services adversely affects Allbound’s equipment or service to others; or (e) a security incident or other disaster occurs that impacts the Allbound Services or the security of the Customer Materials. Allbound will have no liability for any damages, liabilities or losses as a result of any suspension of Customer’s use of the Allbound Services in accordance with this Section 11.2. Allbound will provide Customer with prior notice of the need for any such suspension, and allow at least 10 days for Customer to cure any breach that is the cause for such suspension. Any suspension made pursuant to this section will only be in effect for as long as necessary to address the issues giving rise to the suspension.
11.3. Effect of Termination
Upon any expiration or termination of this Agreement or any then-current Order Form or Statement of Work: (a) all rights and licenses granted to Customer under this Agreement and/or the affected Order Form or Statement of Work will immediately terminate; (b) Customer will immediately pay to Allbound all amounts due and payable up to the effective date of termination of this Agreement; and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Allbound will delete or otherwise destroy any or all Customer Confidential Information or Customer Materials in its possession or control after thirty (30) days following the expiration or termination of the Agreement; accordingly, Customer must deliver notice to Allbound of its request for Allbound to return or destroy such Confidential Information in accordance with Section 11.3(c) within such time period, and such request must be made in writing in an email to [email protected]. If this Agreement (and any Order Form) is terminated following breach by Allbound, Customer will receive a pro-rated refund of the unearned pre-paid Fees. If this Agreement or any Order is terminated by Allbound following breach by Customer, Customer will also pay all amounts to become due and owing under the applicable Order Form.
Those provisions that by their nature are intended to survive termination or expiration of this Agreement will so survive.
12. General Provisions
12.1. Entire Agreement
This Agreement, including the Order Form(s) and Statement(s) of Work, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter. In the event of a conflict between the terms and conditions of an Order Form and/or a Statement of Work and the terms of this Agreement, the terms and conditions of this Agreement govern unless expressly provided otherwise in the applicable Order Form and/or Statement of Work.
12.2. Independent Contractor
In making and performing under this Agreement, the parties are acting and shall act as independent contractors and not that of employer and employee, joint venture, or partnership. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
12.3. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions.
12.4. Attorneys Fees
If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.
Customer hereby consents to Allbound’s use of Customer’s name and logo on the Allbound website and publicly available printed materials, identifying Customer as a customer of Allbound and describing Customer’s use of the Allbound Services. Customer agrees that Allbound may issue a press release identifying Customer as customer of Allbound.
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each party may assign this Agreement to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, with written notice to the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
12.7. Amendments and Waivers
No modification, deletion or addition, or waiver of any rights under this Agreement will be binding on a party unless made in a non-preprinted agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. Unless expressly provided herein, all rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified in the Order Form or Statement of Work or at such other address as may hereafter be furnished in writing by either party to the other party. Any notice will be deemed to have been effectively received: (a) immediately upon delivery or successful confirmed email transmission to the parties to be notified; (b) one (1) day after deposit with a commercial overnight courier with tracking capabilities; or (c) five (5) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties set forth on the Order Form or Statement of Work.
If any provision of this Agreement is invalid, illegal, or unenforceable, all other provisions of this Agreement will nonetheless remain
in full force and effect and it is the intent and agreement of the parties that this Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and that achieves the same objective.
12.10. Force Majeure
Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).