THIS AGREEMENT GOVERNS YOUR USE OF THE SYNACK SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SYNACK SERVICES.
This Master Services Agreement (“Agreement”) was last updated on February 10, 2017. It is effective between Customer and Synack, Inc., a Delaware corporation with offices at 1600 Seaport Blvd #170, Redwood City, CA 94063 (“Synack”), as of the date Customer accepted this Agreement (“Effective Date”). Synack and Customer are each referred to herein as a “Party” and collectively as the “Parties.” In consideration of the mutual promises and upon the terms and conditions herein, the Parties agree as follows:
1.1 “Confidential Information” means, collectively, Confidential Customer Information and Confidential Synack Information.
1.2 “Confidential Customer Information” means non-public, confidential or proprietary information disclosed by Customer to Synack, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, “Representatives”) of Synack, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, whether identified at the time of disclosure as confidential, or which would reasonably be understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential or proprietary. Customer Confidential Information includes information regarding a potential or actual Vulnerability contained in a Customer Product except when included in aggregated metrics that does not identify Customer Products or Customer.
1.3 “Confidential Synack Information” means any non-public, confidential or proprietary information disclosed by Synack to Customer, or to any of Customer’s Representatives, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, whether identified at the time of disclosure as confidential, or which would reasonably be understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential or proprietary.
1.4 “Customer Account” means the account used by Customer to access the Synack Platform, as permitted by Synack in accordance with this Agreement.
1.5 “Customer Materials” means all Customer Products, Test Environments, and other software, technology, information, data, materials and intellectual property provided or made available by Customer to Synack hereunder.
1.6 “Customer Product” means any application, software, technology, or other product or service of Customer that is submitted by Customer to Synack pursuant to any Rules of Engagement for Vulnerability testing.
1.7 “Research Project” means a specific Customer request to have Synack Personnel find Vulnerabilities in one or more Customer Products as specified in the SOW(s).
1.8 “Rules of Engagement” means the terms mutually agreed upon in writing from time to time by Customer and Synack regarding the Research Project.
1.9 “Statement of Work” or “SOW” means the ordering documents or user interface for Customer purchases from Synack that are entered into hereunder by Customer and Synack from time to time. All Statements of Work shall be deemed incorporated herein.
1.10 “Synack Personnel” means the Synack employees and contractors performing the Synack Services hereunder.
1.11 “Synack Platform” means the platform provided by Synack to Customer in connection with the Synack Services which includes all software, interfaces, tools, utilities and other technologies (and any related intellectual property) relating thereto.
1.13 “Synack Services” means all services provided by Synack to Customer as set forth in one or more SOWs, and any additional related support services as Synack may provide in its sole discretion.
1.14 “Synack Services Fee” means the amount payable to Synack by the Customer in consideration for the Synack Services, as set forth in the Statement of Work.
1.15 “Term” shall have the same meaning as set forth in the Statement of Work.
1.16 “Test Environment” means an environment provided or made available by Customer to Synack in which Synack Personnel will test for Vulnerabilities.
1.17 “Vulnerability” means a weakness or mistake in a Customer Product that (i) allows an attacker to gain access to a system or network or otherwise reduce a network or system’s information security; and (ii) meets the terms provided in the Customer’s Rules of Engagement.
2. SYNACK SERVICES. Synack shall perform the Synack Services, its responsibilities and obligations (i) in a timely and professional manner consistent with industry standards and (ii) within any time, schedule, completion requirements and other requirements specified in the applicable SOW.
3. CUSTOMER OBLIGATIONS.
3.1 Cooperation; Customer Primary Contact. Customer shall cooperate with Synack in all matters relating to Synack Services. Customer shall appoint a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement.
3.2 Customer Information and Materials. Customer shall provide such Customer Materials as Synack considers reasonably necessary in order to carry out the Synack Services in a timely manner and to ensure that Synack has adequate information to undertake a particular Research Project.
4.1 Synack Services Fee. In consideration of the Synack Services, Customer shall pay to Synack the Synack Services Fee set forth in the Statement of Work. Synack shall have the right to amend the Synack Services Fee for any renewal term specified in the Statement of Work upon written notice to Customer at least ninety (90) days prior to the commencement of such renewal term.
4.2 Payment Terms. Customer shall pay the Synack Services Fee to Synack within thirty (30) days of the date of invoice. Synack shall invoice Customer prior to providing the Synack Services. All overdue amounts shall bear interest until paid at a rate of one and a half percent (1.5%) per month or the maximum legal rate, whichever is less.
4.3 Taxes. The Synack Services Fee payable hereunder does not include taxes. Customer shall be responsible for all taxes and tariffs related to this Agreement (other than taxes on Synack’s net income). Customer shall pay or reimburse Synack for all sales, use, excise, personal property, value-added, or other foreign, international, federal, state or local taxes, duties, or any similar assessments based on this Agreement.
5. SYNACK PLATFORM
If Customer provides Synack or Synack Personnel with access to any non-public websites or Test Environments, Customer shall cooperate with Synack in its efforts to make such website or Test Environment available through the Synack Platform and allow Synack Personnel to access the website or Test Environment. If any development, integration or custom work is required in order to make the Customer website or Test Environment available to Synack Personnel through the Synack Platform, Customer shall pay Synack for such services on a time and materials basis at Synack’s then current hourly rates and will reimburse Synack for all out-of-pocket expenses incurred by Synack in connection with the performance of such services.
Upon any expiration or termination of this Agreement Customer’s right to access and use the Synack Platform will terminate.
5.2 Messaging System. Customer may from time to time use Synack’s messaging system to communicate with Synack Personnel through the Synack Platform. Synack reserves the right to monitor, intercept and review, without further notice, messages sent or received using the message system. Synack may also store copies of such data and communications for a period of time after they are created, and may delete such copies from time to time without notice. Customer acknowledges and agrees that the identity of any Synack Personnel will not be disclosed or otherwise made available to Customer by Synack or through the Synack Platform, and that Synack has no obligation to disclose the identity of any Synack Personnel to Customer.
5.3 Platform Use Policy. Customer shall not, and shall not permit any third party to:
- a. violate or otherwise not comply with any applicable local, state, national or international law or regulation;
- b. copy, reproduce, alter, modify, create derivative works from, rent, lease, loan, sell, distribute or publicly display the Synack Platform, Synack Services, any other material made available via the Synack Services, or any part of any of the foregoing, without the prior written consent of Synack;
- c. decompile, disassemble, translate or otherwise reverse engineer or attempt to derive the source code for the Synack Platform or the Synack Services or any portion thereof;
- d. attempt to obtain any information or content from the Synack Platform or Synack website using any robot, spider, scraper or other automated means for any purpose, except as otherwise expressly permitted in writing by Synack;
- e. transmit or upload any software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of Synack or any third party;
- f. misrepresent or impersonate any person or entity, including any employee or representative of Synack;
- g. interfere or attempt to interfere with the proper working of the Synack Platform or Synack Services or any activities conducted on the Synack Platform or Synack Services; or
- h. use the Synack Platform or the Synack Services in any manner that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity or violates any law or contract; (ii) is false, misleading or inaccurate; (iii) is unlawful, threatening, abusive, harmful, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane or invasive of another’s privacy; (iv) makes any unsolicited communications or advertising not authorized by Synack, promotional materials or any other form of solicitation for any type of information; or (v) imposes, as determined in Synack’s sole discretion, an unreasonable or disproportionately large load on Synack’s IT infrastructure.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Intellectual Property Rights. Subject to the terms and conditions of this Agreement, Customer hereby grants to Synack, and Synack hereby accepts, a non-exclusive, worldwide, non-transferable (except as permitted in Section 12.4), royalty-free, fully paid-up license during the Term, to use and access the Customer Materials and the Test Environments and to permit Synack Personnel to use and access the Customer Materials and Test Environments for the purpose of performing and providing the Synack Services. Synack acknowledges that any and all intellectual property rights in or related to the Customer Materials are and shall remain, as between Customer and Synack, the sole and exclusive property of Customer.
6.2 Synack Platform and Synack Services. Customer acknowledges that any and all intellectual property rights in or related to the Synack Platform and Synack Services, including all related technology and services, are and shall remain, as between Customer and Synack, the sole and exclusive property of Synack. Except as expressly stated herein, Customer shall not, and shall not permit any third party to, use or access the Synack Platform or Synack Services for any other purpose or use the Synack Platform or Synack Services for the benefit of any other person or entity. Customer shall have no other rights or licenses with respect to the Synack Platform or Synack Services (including rights under any patents or other intellectual property rights of Synack). All rights not expressly granted by Synack under this Agreement are reserved by Synack and its respective licensors.
6.3 Certain Data. Synack may use information and data generated or accessed by Synack in the course of performing Synack Services to analyze the performance of and enhance Synack products and services, and Synack may disclose such information and data in reports, presentations and other publications solely in an aggregated manner that does not identify Customer, any Customer product or service, or any individual, or enable any such information or data to be associated with Customer, a Customer product or service, or any individual.
7. CONFIDENTIAL INFORMATION.
7.1 Obligations. Each Party (each, a “Receiving Party”) will maintain in confidence all Confidential Information disclosed to it by the other Party (the “Disclosing Party”). Each Receiving Party agrees not to disclose such Confidential Information except as expressly authorized by this Agreement or unless the Disclosing Party provides the Receiving Party with written consent. Each Receiving Party agrees not to use the Disclosing Party’s Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. Each Receiving Party may disclose the Confidential Information of the Disclosing Party only to its employees, agents or subcontractors who need to know such Confidential Information for the purposes of this Agreement (including, in Synack’s case, to Synack Personnel) who are under an obligation of confidentiality to the Receiving Party. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. At the end of the Term, each Receiving Party will return to Disclosing Party, or, upon written request of the Disclosing Party, will destroy any Confidential Information still in its possession.
7.2 Exceptions. The obligations of confidentiality contained in Section 7.1 will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that such Confidential Information:
- a. was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party;
- b. was generally available to the public or otherwise part of the public domain at the time of its disclosure by the Disclosing Party to the Receiving Party;
- c. became generally available to the public or otherwise part of the public domain after its disclosure to the Receiving Party and other than through any act or omission of the Receiving Party in breach of this Agreement;
- d. was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the Disclosing Party not to disclose such information to others;
- e. was developed independently by the Receiving Party without any use of or reference to Confidential Information of the Disclosing Party; or
- f. was disclosed with the prior written consent of the Disclosing Party.
7.3 Required Disclosures. The foregoing confidentiality and nondisclosure obligations shall not prohibit the disclosure of Confidential Information, to the extent such disclosure is required by law or by regulation; provided, however, that, in such event, the Receiving Party provides the Disclosing Party with prompt advance notice of such disclosure so that the Disclosing Party has the opportunity if it so desires to seek a protective order or other appropriate remedy.
7.4 Injunctive Relief. Each Party acknowledges that the other Party’s Confidential Information is unique and valuable, and that breach by a Receiving Party of the obligations of this Section 7 regarding the Disclosing Party’s Confidential Information could result in irreparable injury to the Disclosing Party for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the event of a breach or anticipated breach of this Section 7, the affected Party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
8.1 Both Parties. Each Party represents and warrants to the other Party that:
- a. it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
- b. it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
- c. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and
- d. when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2 Customer Warranties. Customer represents and warrants that (a) it owns or has sufficient license or other legal rights to all Customer Materials, including all such Customer Materials related to the Test Environments, and (b) the Customer Materials do not infringe or otherwise misappropriate or violate any third party intellectual property rights including, but not limited to, patents, trade secrets, trademarks, and copyrights.
8.3 Disclaimer of Warranties. THE SYNACK SERVICES, THE SYNACK PLATFORM AND ANY CONTENT AND INFORMATION PRESENTED ON OR VIA THE SYNACK SERVICES OR THE SYNACK PLATFORM ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, TIMELINESS, ACCURACY, COMPLETENESS, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SAFETY. ANY ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SYNACK OR ITS AUTHORIZED REPRESENTATIVES, OR BY SYNACK PERSONNEL, WILL NOT BE DEEMED TO CREATE ANY WARRANTY. WITHOUT LIMITING THE FOREGOING, NEITHER SYNACK NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SYNACK SERVICES OR THE SYNACK PLATFORM WILL BE UNINTERRUPTED OR THAT THE SYNACK SERVICES OR THE SYNACK PLATFORM WILL BE ERROR-FREE.
9.1 By Customer. Customer shall defend, indemnify, and save harmless Synack and its officers, directors, employees, Synack Personnel, agents and representatives (“Indemnified Synack Parties”) from and against any and all damages, liabilities, losses and other costs (including without limitation reasonable attorneys’ fees) relating to any claim, demand, suit, or any other proceeding brought by a third party (“Claim”) against any Indemnified Synack Party arising from or relating to any actual or alleged violation or infringement of any proprietary right of any third party (including, but not limited to, any patent, copyright, trademark, trade secrets or any other intellectual property rights) by the Customer Materials (including access to a Test Environment or other non-public website) or the use thereof by Synack or Synack Personnel in accordance with this Agreement. This Section 9.1 will not apply to any Claim to the extent that the Claim arises out of (a) any unauthorized modification of the Customer Materials by Synack or any Synack Personnel, or (b) any combination of the Customer Materials with other products, services or materials not authorized by Customer.
9.2 By Synack.
- a. Synack shall defend, indemnify, and save harmless Customer and its officers, directors, employees, agents and representatives (“Indemnified Customer Parties”) from and against any and all damages, liabilities, losses and other costs (including without limitation reasonable attorneys’ fees) relating to any Claim against any Indemnified Customer Party arising from or relating to any actual or alleged violation or infringement of any proprietary right of any third party, (including, but not limited to, any patent, copyright, trademark, trade secrets or any other intellectual property rights) by the Synack Services or Synack Platform. This Section 9.2(a) will not apply to any Claim in the event and to the extent that the Claim (i) arises out of or is related to (A) any modification of the Synack Services or Synack Platform other than by Synack, (B) any combination of the Synack Services or Synack Platform with other products, services or materials not authorized by Synack, or (C) Customer’s failure to use the replacement or modification provided by Synack pursuant to Section 9.2(b), or (ii) is subject to indemnification by Customer pursuant to Section 9.1.
- b. If Synack believes the Synack Services and/or Synack Platform infringe or may be alleged to infringe any third party proprietary right, then Synack may, in addition to its indemnification obligations set forth above, and at its sole option and expense: (i) procure for Customer the right to use the allegedly infringing Synack Services or Synack Platform, as applicable, (ii) replace the Synack Services or Synack Platform, as applicable, with other non-infringing services or products, or (iii) modify the Synack Services or Synack Platform, as applicable, so that it does not infringe. If none of (i) through (iii) is commercially feasible, Synack may terminate this Agreement immediately upon written notice to Customer. This Section 9.2 states the entire liability and obligations of Synack, and the exclusive remedy of Customer, with respect to any actual or alleged infringement of any third-party proprietary rights in connection with this Agreement.
9.3 Indemnification Procedure. The indemnification obligations above in Sections 9.1 and 9.2 are contingent on the indemnified party (a) promptly notifying the indemnifying party of any Claim (provided that the indemnified party’s failure to provide such prompt notice will not release the indemnifying party from its indemnification obligations except to the extent the indemnifying party is materially prejudiced thereby); (b) providing the indemnifying party with any reasonable information and assistance needed to defend or settle the Claim (provided the indemnifying party bears any out of pocket expenses incurred by the indemnified party in providing such assistance or information); and (c) allowing the indemnifying party the right to have sole control of the investigation, defense and settlement of the Claim, provided that the indemnifying party will not enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified party that is not covered by the indemnification; (ii) imposes a material, non-monetary obligation on the indemnified party; (iii) does not include an unconditional release of the indemnified party; or (iv) admits liability on the part of the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing.
10. LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY) OR AMOUNTS PAYABLE BY A PARTY PURSUANT TO SECTION 9 (INDEMNIFICATION) OR SYNACK SERVICES FEES PAYABLE BY CUSTOMER TO SYNACK, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER THE OTHER PARTY, FOR ANY LOST PROFITS, LOSS OF DATA, EQUIPMENT DOWNTIME OR FOR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND (B) IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE TOTAL AMOUNT OF SYNACK SERVICES FEES PAID TO SYNACK BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR BREACHES OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY) OR PURSUANT TO SECTION 9 (INDEMNIFICATION) EXCEED $2,000,000.
11. TERM AND TERMINATION.
11.1 Term. This Agreement shall continue in full force and effect during the Term unless sooner terminated in accordance with this Agreement.
11.2 Termination. Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party materially breaches this Agreement and does not cure such breach within twenty (20) days following its receipt of written notice thereof from the non-breaching Party. Synack may terminate this Agreement (a) for any reason upon thirty (30) days prior written notice to Customer, and (b) immediately, with or without prior notice, to the extent set forth in the Statement of Work or if Synack determines, in its sole discretion, that any Customer Material violates the warranties set out in Section 8.2.
11.3 Effect of Termination.
- a. Except as otherwise expressly provided herein, upon any expiration or termination of this Agreement, all rights, licenses and obligations of the Parties shall immediately cease and terminate. Termination or expiration of this Agreement will not relieve or release either Party from any liability which, at the date of termination, has already accrued to the other Party, including making payments which may be owing to the other Party under the terms of this Agreement.
- b. Upon any expiration or termination of this Agreement, (i) each Party shall promptly return to the other Party all Confidential Information of the other Party in its possession or under its control, or, upon written request of the other Party, destroy all Confidential Information in its possession and (ii) all amounts payable by Customer hereunder (including all Synack Services Fees) shall be immediately due and payable to Synack. If Synack terminates this Agreement pursuant to Section 11.2(a), Synack will pay to Customer a prorated refund of the Synack Services Fees based on the unperformed Synack Services as of the date of termination. Except as set forth in this Section 11.3(b), no amounts paid by Customer (including all Synack Services Fees) pursuant to this Agreement will be refunded to Customer.
- c. Notwithstanding anything to the contrary in the foregoing, the provisions of this Section 11.3 and of Sections 1, 4 (with respect to Synack Services provided prior to the effective date of termination or expiration), 6–10, 12.2-12.12 shall survive the termination or expiration of this Agreement in accordance with their terms.
12.1 Publicity. Synack shall have the right to use and display Customer’s name and logo on Synack’s website and in other advertising and marketing materials and to otherwise disclose that Customer is a client of Synack.
12.2 Governing Law. The validity, construction and interpretation of this Agreement, and the rights and duties of the Parties, shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to the conflict of law provisions thereof, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. The Parties hereto consent to the jurisdiction of the state and federal courts of the U.S. located in San Mateo County, California in connection with any controversy arising out of this Agreement and agree not to bring any action in any other jurisdiction.
12.3 Waiver and Amendment. No waiver, amendment or modification of any provision hereof or of any right or remedy hereunder shall be effective unless made in writing and signed by the Party against whom such waiver, amendment or modification is sought to be enforced, and this Agreement may only be amended by a writing signed by both Parties. No failure by any Party to exercise, and no delay by any Party in exercising, any right, power or remedy with respect to the obligations secured hereby shall operate as a waiver of any such right, power or remedy.
12.4 Assignment. Customer shall not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Synack. Synack shall have the right to freely assign this Agreement. This Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties hereto.
12.5 Force Majeure. Neither Party shall be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement on account of, riots, insurrections, fires, floods, storms, explosions, acts of nature, acts of terrorism, war, governmental action, labor conditions, earthquakes, or any other cause that is beyond the reasonable control of such Party.
12.6 Notices. All notices required by or permitted under this Agreement shall be in writing and shall be deemed given as of the day personally delivered or electronic mail (provided that delivery to the recipient is confirmed), or sent by express courier, each such delivery method delivered, sent or addressed to the address set forth below the signature line, or at such other address as properly designated in writing from time to time.
12.7 Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall continue in full force and effect to the maximum extent permissible without being impaired or invalidated in any way.
12.8 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument.
12.9 Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement shall confer any rights upon any person other than the Parties, and each such Party’s respective successors and permitted assigns.
12.10 Independent Contractors. The relationship between the Parties is and shall be that of independent contractors. It is expressly agreed that nothing in this Agreement shall be construed to create or imply a partnership, joint venture, fiduciary or agency relationship, or contract of employment. Neither Party shall have the authority to make any statement, representation or commitment of any kind, or to take any action, that shall be binding on the other Party.
12.11 Headings. The headings used in this Agreement are for convenience only and shall not be considered part of the Agreement.
12.12 Entire Agreement. This Agreement along with all Exhibits constitute the entire understanding and agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, between the Parties hereto with respect to the subject matter hereof.