Last Revised: April 13, 2021
GUIDECX MASTER SERVICES AGREEMENT
1. AGREEMENT STRUCTURE AND DEFINITIONS
1.1. This Master Services Agreement (this “Master Agreement”) establishes the general terms and conditions to which the parties have agreed with respect to the provision of GuideCX client onboarding project platform (the “Platform”) and any related implementation or other professional services that may be ordered pursuant to an Order (collectively, the “Services”) by GuideCX, Inc. (“GuideCX”) to you (“you” or “Customer”). Additional terms for the Services are set forth in the Order(s).
1.2. This Master Agreement, along with Order(s) are referred to collectively as the “Agreement”. The parties acknowledge receipt of and agree to be bound by the terms and conditions of the Agreement. Each Order shall be subject to the terms and conditions of this Master Agreement and any conflicting terms on any pre-printed or standard terms of any Customer purchase order or other business processing document shall have no effect.To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of an Order, the terms and conditions of this Master Agreement shall control, except where the Order expressly states the intent to supersede a specific portion of this Master Agreement.
The Agreement is effective the earlier of (a) your first access to the Platform or (b) your execution of an Order. If you access the Platform on behalf of a company or entity then “you” or “Customer” includes you and that entity, and you represent and warrant that (i) you are an authorized representative of the entity with the authority to bind the entity to this Master Agreement, and (ii) you agree to this Master Agreement on that entity’s behalf
1.3. Certain Definitions:
“Customer Data” means any data Customer or any User provides, uploads, or submits through the Platform.
“Order” means the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of this Master Agreement, and describes order-specific information, such as description of the Services, subscription term, fees, and other terms as may be agreed to by the parties.
“Professional Services” means training, implementation, data conversion, integrations and other consulting services.
“Term” means the Initial Term and any renewal terms.
“User” means any employee, an individual contractor or customer of Customer that is authorized by Customer to access the Platform.
2. PRODUCTS AND SERVICES
2.1. Set-Up and Implementation. GuideCX shall provide set-up and implementation services and such additional Professional Services as described in the Order(s). Customer will be responsible for establishing and maintaining procedures to examine and confirm results prior to use, adopt procedures to identify and correct Customer or User errors and omissions, and designate an authorized primary and a backup point of contact who will coordinate communication and activities, make or facilitate making decisions during the Term.
2.2. Cooperation. Customer acknowledges and agrees that GuideCX’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder. GuideCX shall be entitled to rely on all decisions and approvals by Customer as communicated by Customer’s primary or backup point of contact.
2.3. Training Services. Customer may order certain train-the-trainer training services in an Order. However, Customer is otherwise responsible for arranging any training for its Users.
3. USE RIGHTS AND RESTRICTIONS
3.1. Grant of Access. Subject to the provisions contained in the Agreement, GuideCX hereby grants Customer for the Term a non‑transferable, non‑exclusive, limited right for Customer’s Users to access the Platform solely for the internal business purposes of Customer.
3.2. Restrictions. Customer shall not itself, and shall ensure its Users do not: (a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, or otherwise permit any third party (other than Users) to access or use the Services; (b) decipher, decompile, disassemble, reverse assemble, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Platform; (c) modify, translate, or develop any derivative works based upon the Platform; (d) access the Platform in order to build a competitive product or service; (e) use the Platform to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs through the Platform; (g) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (h) attempt to gain unauthorized access to the Platform or its related systems or networks; (i) disclose or publish performance or capacity statistics or the results of any benchmark test performed on the Platform or other Services; (j) obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices on the Platform or (k) otherwise use the Services except as expressly permitted herein.
3.3. Users. Customer shall cause all Users obtaining access to the Platform to accept either the terms of GuideCX’s click-through end-user license agreement or Customer’s end-user license agreement, which each such User must agree to prior to using the Services. If Users accept Customer’s end-user license agreement, Customer agrees it will not make any warranty, representation or commitment to any User with respect to the Platform except as may be expressly set forth herein, and Customer shall be solely responsible for any warranties, representations or commitments to Users. Customer shall ensure that all Users are at least 18 years old. Notwithstanding an User’s acceptance of any separate end-user license agreement, Customer is solely responsible for all activities that occur under User accounts and Customer shall remain liable for all acts and omissions of its Users and any breach of the Agreement by the Users shall be deemed a breach by Customer hereunder. Customer shall provide access credentials only to individuals that Customer intends to be Users and shall ensure that Users maintain secrecy of its access credentials. GuideCX has no obligation to verify the identity of any person who gains access to the Platform through access credentials provided by Customer. Customer must immediately take all necessary steps, including providing notice to GuideCX, to effect the termination of an access ID for any User if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.
3.4. Updates. GuideCX may make available, at its sole discretion, updates and upgrades to the Platform as such updates and upgrades are made generally available to GuideCX’s other customers. Customer will be responsible for the cost of any modifications to its infrastructure that may be required in connection with implementation of any updates or upgrades. GuideCX may modify, alter, add and/or substitute features of the Platform from time to time, in whole or in part, without any notice to Customer; provided that GuideCX will use reasonable efforts to provide Customer written notice if GuideCX believes that any modification, alteration, addition or substitute will cause a material adverse effect on Customer’s access of the Platform.
3.5. Integrations. Customer may integrate the Platform with Customer’s accounts or subscriptions to third-party services or applications. GuideCX does not warrant or endorse and does not assume and will not have any liability or responsibility to Customer or any User for any such third-party services or applications.
3.6. Free Trials. If you register for a free trial to access and use the Platform, Platform will be made available to you and a limited number of Users in accordance with the terms of the Agreement on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Platform; (b) the start date of any subscription to the Platform purchased by you pursuant to an Order; or (c) termination of the free trial by us in our sole discretion. Any data inputted or transmitted through the Platform, and any configurations made to the Platform during the free trial period will be permanently lost unless Customer purchases a paid subscription to the Platform, or exports such data, before the end of the free trial period.
NOTWITHSTANDING SECTION 9 (“INDEMNIFICATION”) BELOW, DURING THE FREE TRIAL THE PLATFORM IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND GUIDECX SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY TO CUSTOMER OF ANY TYPE WITH RESPECT TO THE PLATFORM FOR THE DURATION OF THE FREE TRIAL PERIOD.
3.7. Email Notifications. You understand that if you authenticate your domain name through the Services, the Services will be able to send notification emails to Users on behalf of other Users. These emails will be generated by the Services but appear to be sent by such other Users and have a “reply to” address of the e-mail address of the applicable task assignee or project manager.
3.8. Compliance with Applicable Laws. In undertaking any activity under this Agreement, Customer shall comply with any and all laws, rules, regulations and relevant industry standards applicable to its performance of its obligations under this Agreement. Without limiting the foregoing, Customer will fully comply with (a) the U.S. Foreign Corrupt Practices Act and will not make any payment to third parties that would cause Customer or GuideCX to violate such statute; (b) all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774); (c) all applicable data protection, information security and privacy laws, rules, regulations and relevant industry standards (“Applicable Data Protection Laws”), including without limitation (i) Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 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), (ii) the UK Data Protection Act 2018 (“UK DPA”), (iii) the UK General Data Protection Regulation as defined by the UK DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, (iv) the Health Insurance Portability and Accountability Act of 1996, (v) the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations, (vi) the Gramm-Leach-Bliley Act and (vii) the PCI Data Security Standards.
4.1. Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the Customer Data. Customer shall only disclose, submit or provide to GuideCX Customer Data as necessary for GuideCX to provide the Services to Customer. Customer hereby grants GuideCX a non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) during the Term to access, use, reproduce and create derivative works of the Customer Data in order to provide the Services for Customer and fulfill GuideCX’s obligations under this Agreement. Customer hereby represents and warrants that Customer has provided all necessary and appropriate notices and opt-outs, and has obtained all necessary and appropriate consents, approvals and rights to collect, process, use, store, enhance and disclose the Customer Data and allow GuideCX to use, store, disclose and otherwise process such Customer Data as contemplated by this Agreement, including to and from Users wherever required under applicable law. Customer shall obtain and retain throughout the Term of this Agreement and for three (3) years after its termination records sufficient to demonstrate it has provided all such notices and opt-outs and obtained all such consents, approvals and rights.
4.2. No Sensitive Information. You will not submit to the Platform any Customer Data that is (i) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996; (ii) credit, debit or other payment card data subject to PCI DSS; (iii) nonpublic personal information subject to regulation or protection under the Gramm-Leach-Bliley Act (or related rules or regulations); (iv) social security numbers, driver’s license numbers or other government ID numbers; or (v) any information about individuals or other data similar to the foregoing that is protected under foreign or domestic laws or regulations (collectively, “Prohibited Data”). For the avoidance of doubt, this does not prohibit the Customer from including any link that contains Prohibited Data stored outside the Platform, providing that at no point is Prohibited Data stored in or submitted to the Platform. Notwithstanding any other provision to the contrary, GuideCX shall have no liability under the Agreement for any Customer Data submitted in violation of this Section 4.2.
4.4. Data Processing Agreement. To the extent required by Applicable Data Protection Laws, Customer and GuideCX agree that the terms of the Data Processing Agreement, incorporated herein by reference, and attached hereto, shall apply to GuideCX’s provision of the Services.
5. FINANCIAL TERMS.
5.2. Taxes. Customer shall be responsible for payment of all taxes (excluding those on GuideCX’s net income) relating to the provision of the Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to GuideCX to evidence Customer’s tax exemption status is provided by Customer to GuideCX prior to the delivery of Services.
6.1. Confidential Information Confidential Information means nonpublic information that relates to or is provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that the Disclosing Party designates as being confidential or that under the circumstances surrounding disclosure should be treated as confidential (“Confidential Information”). Confidential Information includes, without limitation: information relating to the disclosing party’s software or hardware products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results. Confidential Information also includes information received from third parties that the Disclosing Party is obligated to treat as confidential
6.2. Exceptions. Confidential Information shall not include any information that the Disclosing Party can show: (a) is already known to the Receiving Party prior to disclosure pursuant to this Agreement; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is received by the Receiving Party from a third party without any restriction on confidentiality; or (d) is approved for release by prior written authorization of the Disclosing Party.
6.3. Confidentiality Obligations. The Receiving Party agrees to maintain the confidentiality of the Disclosing Party’s Confidential Information and to use at least the same care and precaution in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, the Receiving Party shall not publish or disclose the Disclosing Party’s Confidential Information to third parties other than its employees, personnel, attorneys, advisors, and potential investors who are bound to keep such information confidential. Either party may only use Confidential Information in order to fulfill its obligations under this Agreement.
6.4. Required Disclosures. Notwithstanding anything on the contrary in this Section 6, the Receiving Party may disclose the Confidential Information of the Disclosing Party in the event that the Receiving Party receives a subpoena or other government process that purports to require the production of Confidential Information of the Disclosing Party for use in an action or proceeding, provided that the Receiving Party shall (a) promptly inform the entity issuing such subpoena or other government process of the existence of this Agreement, (b) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash or limit any such subpoena or other government process. In the event the Disclosing Party fails to intervene to quash or limit such subpoena or other government process after being given notice and a reasonable opportunity to do so or such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced. In the event that any Confidential Information is ordered produced in an action or proceeding, such Confidential Information shall not lose its confidential status through such use and the Receiving Party shall take all reasonable and necessary steps to maintain the confidentiality of such Confidential Information during such use.
7. OWNERSHIP – INTELLECTUAL PROPERTY RIGHTS.
7.1. GuideCX Rights. The Platform, all materials used in the performance of any Professional Services (other than any Customer Materials (as defined below)) and all deliverables provided in the performance of any Professional Services will at all times remain the exclusive, sole and absolute property of GuideCX or its licensors. Customer does not acquire any right, title, or interest in or to the Platform or any deliverables provided as part of the Professional Services except the limited right to access and use them in accordance with the terms of the Agreement. All rights, title and interest (including all intellectual property rights) in or to the Services not expressly granted under the Agreement are reserved by GuideCX and its licensors. If Customer or its Users elect to provide GuideCX with any feedback, comments, or suggestions for improvements of any kind related to the Services (“Feedback”), the Feedback will be the sole and exclusive property of GuideCX and Customer hereby assigns all rights in and to the Feedback to GuideCX. GuideCX will have the right to use and disclose such Feedback in any manner and for any purpose, without remuneration, compensation, or attribution to Customer or its Users.
7.2. Customer Rights. Customer retains sole and exclusive ownership to (a) the Customer Data, (b) content, materials or technology supplied by Customer to GuideCX in connection with GuideCX’s provision of the Platform or the Professional Services (the “Customer Materials”) and (c) Customer’s name, trademarks and logos (the “Customer Marks”). Customer hereby grants GuideCX a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to GuideCX’s contractors performing services on its behalf) license during the Term to (i) use, copy, display and reproduce the Customer Marks and (ii) use, transmit, reproduce, display, distribute and prepare derivative works of the Customer Materials, in each case as necessary to provide the Platform and any Professional Services to Customer. Customer also grants GuideCX a non-exclusive, royalty-free license to use the Customer Marks to identify Customer as a customer of GuideCX on promotional materials and GuideCX’s website. Any use of the Customer Marks shall be in accordance with Customer’s standard trademark guidelines, if any such guidelines are provided to GuideCX.
8.1. General Warranty Disclaimer. THE PLATFORM AND ALL OTHER SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF THE PLATFORM OR OTHER SERVICES, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, GUIDECX DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY GUIDECX.
8.2. Connections over the Internet. GuideCX will implement reasonable and appropriate measures designed to secure Customer Data against accidental or unlawful loss, access or disclosure. However, Customer acknowledges that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the services and customer data. Accordingly, GuideCX cannot and does not guaranty the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the internet.
8.3 Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.
9.1 Indemnification by GuideCX. GuideCX shall indemnify, defend and hold harmless Customer and its officers, directors and employees (“Customer Indemnified Parties”) against any damages, losses, expenses, costs or liabilities incurred by any Customer Indemnified Party in connection with any action, claim or proceeding brought against a Customer Indemnified Party by a third party alleging that the Platform infringes the intellectual property rights of a third party. GuideCX shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (a) Customer’s or its Users’ use of the Platform other than as contemplated by this Agreement, (b) any modifications made to the Platform by any person other than GuideCX or its authorized representative, (c) any combination of the Platform with services or technologies not provided by or expressly authorized by GuideCX, (d) use of any version other than the latest commercially available version of the Platform made available to Customer, or (e) Customer’s or its Users’ use of the Platform or portion thereof after GuideCX has terminated this Agreement or such portion of the Platform in accordance with this Section 9.1. If in GuideCX’s opinion the Platform may be infringing, GuideCX may in its discretion (x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Platform, (y) modify the Platform to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using commercially reasonable efforts, terminate the Agreement or access to the infringing portion of the Platform and refund the amount of any pre-paid fees applicable to any access to the Platform to be provided after the termination date. GUIDECX’S OBLIGATIONS IN THIS SECTION 9.1 SHALL BE ITS SOLE AND EXCLUSIVE LIABILITY TO CUSTOMER, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INVOLVING THE PLATFORM OR ANY OTHER SERVICES.
9.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless GuideCX, its affiliates and their respective officers, directors and employees (“GuideCX Indemnified Parties”) against any damages, losses, expenses, costs or liabilities incurred by any GuideCX Indemnified Party in connection with any action, claim or proceeding brought against a GuideCX Indemnified Party by a third party (including any User) arising from or related to (a) Customer’s or its Users’ access and use of the Platform and other Services or (b) GuideCX’s use of the Customer Materials and Customer Data in accordance with the terms of the Agreement.
9.3. Indemnification Procedures. A party seeking indemnification under this Section 9 will provide the indemnifying party with prompt written notice of the relevant claim (provided that the failure to provide prompt notice will only relieve the indemnifying party of its obligations to the extent it is materially prejudiced by such failure) and permit the indemnifying party to control the defense, settlement or compromise of such claim. The indemnified party may employ counsel at its own expense to assist it with respect to such claim; provided, however, that if such counsel is necessary because the indemnifying party does not assume control, the indemnifying party will be responsible for the expense of such counsel. The party not controlling such defense may participate therein at its own expense and the party controlling such defense shall keep the other party advised of the status of such claim and the defense thereof. Neither party shall have authority to settle any claim on behalf of the other.
10. LIMITATION OF LIABILITY.
GUIDECX SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF THE SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT OR ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, COST OF COVER OR OTHER PECUNIARY LOSS, EVEN IF GUIDECX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF GUIDECX TO CUSTOMER FOR ANY CLAIMS, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID TO GUIDECX HEREUNDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING ALLOCATION OF RISK AND LIMITATION OF LIABILITY HAS BEEN NEGOTIATED AND AGREED BY THE PARTIES AND FORMS THE BASIS OF THEIR WILLINGNESS TO ENTER INTO THIS AGREEMENT.
11. TERM AND TERMINATION.
11.1. Term. The initial term of the Agreement is specified in the Order (“Initial Term”). Thereafter, the Agreement will automatically renew for successive terms equal to the Initial Term, unless either party notifies the other of its intent to not renew at least thirty (30) days prior to the end of the then-term.
11.2. Termination. Either party may terminate the Agreement immediately upon written notice at any time if the other party fails to cure any material breach or provide a written plan of cure reasonably acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of payment obligations which shall have a ten (10) day cure period. Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order. Orders that are not terminated shall continue in full force and effect under the terms of this Agreement.
11.3. Suspension. GuideCX will be entitled to suspend Customer’s and its Users’ access to the Platform immediately upon written notice to Customer in the event Customer or its Users breach Section 3.2 or if, in GuideCX’s reasonable judgment, there is a security risk created by Customer that may interfere with the proper continued provision of the Platform or the operation of GuideCX’s network or systems. Customer remains obligated for all payment obligations under this Agreement in the event of suspension.
11.4. Effect of Termination. Upon termination or expiration of these Terms, all Orders and licenses set forth thereunder shall terminate, and Customer’s right to access the Platform shall cease. No termination or expiration of this Agreement shall affect any rights or liabilities of a party that accrued prior to the date of termination or expiration, including any fees accrued or payable to GuideCX prior to the effective date of termination or expiration. Upon any termination or expiration of this Agreement, GuideCX shall have no obligation to maintain or provide any Customer Data to Customer and may thereafter delete all Customer Data in its systems or otherwise in its possession or under its control.
11.5 Survival. Sections 1, 4.1, 4.2, 5, 6, 7, 8, 9, 10, 11.3, 11.4, 11.5,and 12shall survive termination of this Agreement.
12. MISCELLANEOUS PROVISIONS
12.1. Independent Contractor. GuideCX and Customer agree that its relationship with the other party is that of an independent contractor. Neither GuideCX nor Customer are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
12.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
12.3. Modifications. GuideCX may modify this Master Agreement at any time by posting a revised version on the GuideCX website, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies an Initial Term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewal term, if any. Each Order is subject to the version of the Master Agreement in effect at the time of such Order.
12.4. Severability. In the event one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction for the matter in question, the enforceability of the remaining provisions shall be unimpaired.
12.5. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
12.6. Assignment. Neither party shall assign the Agreement or any of its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign the Agreement and all of its rights and obligations hereunder to an affiliate or as part of a merger or sale of substantially all the assets or stock of such party. Any assignment by either party in violation of this section shall be null and void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
12.7. Equitable Remedies. The parties agree that (a) the unauthorized disclosure of Confidential Information may cause irreparable harm to the party whose information is disclosed and (b) Customer’s breach of Section 3.2 may cause irreparable harm to GuideCX. In such event, the applicable affected party shall be entitled to seek injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.
12.8. Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by confidential binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. The arbitration proceedings shall be conducted before a single arbitrator. The place of arbitration shall be either (i) Los Angeles, California, in the case of any controversy or claim brought against GuideCX or (ii) the location of your principal place of business, in the case of any controversy or claim brought against you. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority.
12.9. Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity, pandemics, epidemics, emergencies, civil unrest, viruses or denial of service attacks, telecommunications failure, or failure of the internet or internet service provider. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
12.10. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person and address set forth in the signature block of the Order Form. Notices shall be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this section.