Terms and Conditions

THIS MASTER SUBSCRIPTION AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND CANDYSEAT GOVERNING YOUR USE OF THE CANDYSEAT PLATFORM, INCLUDING ANY APPLICABLE FREE TRIALS. PLEASE READ THIS AGREEMENT CAREFULLY.

BY SIGNING UP TO CANDYSEAT AND COMPLETING YOUR REGISTRATION, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND AGREE TO ABIDE BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCEPT THIS AGREEMENT NOR MAY YOU USE THE CANDYSEAT PLATFORM OR RECEIVE SERVICES HEREUNDER.

This Agreement was last updated on November 30, 2014. It is effective between you and CandySeat as of the date you accepted this Agreement (the “Effective Date”).

                             1. Definitions

In addition to the terms defined in the body of the agreement, the following terms have the following meanings:

“Affilates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of interests of the subject entity.

“End Users” means individuals fifteen years or older who are authorized to access and use the CandySeat Platform under Your Subscription. End Users may include but are not limited to You and Your employees, consultants, contractors, and agents.

“CandySeat Platform” means the online application provided by CandySeat and the underlying servers and software used to provide such application (collectively the “System”).

 “Deliverable” means any software, documentation, or other materials expressly required to be delivered to You pursuant to a SOW.

“Fees” means Subscription Fees. Services Fees, and any other amounts due to CandySeat and payable by You under this Agreement.

“Order Forms” means the ordering documents that are entered into by You and CandySeat from time to time, in the form provided by CandySeat. Order Forms are deemed incorporated herein.

“Residuals” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) CandySeat has developed or is developing in connection with the business of creating and offering the CandySeat Platform. Residuals do not include confidential information or data of or relating to Customer.

“Services” means the professional services provided to you by CandySeat pursuant to an SOW under this Agreement.

“Service Fees” means the fees set forth in an SOW under this Agreement.

“Statement of Work” or “SOW” means a statement of work to be performed by CandySeat that references this Agreement and has been executed by the parties hereto. Each Statement of Work shall be deemed incorporated herein.

“Subscription” means the right to access the CandySeat Platform during the Term.

“Subscription Fees” means the fees for a Subscription to each version of the CandySeat Platform are set forth on the CandySeat website.

“Your Data” means any personally identifiable data uploaded by You to the CandySeat Platform that would typically be provided in the normal course of using the CandySeat Platform, as well as all information generated by the End Users during the use of the CandySeat Platform. Your Data includes, without limitation, any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.

                             2. Provision of the Platform

Registration. You must be fifteen years or older to register, and must provide complete and accurate information during the registration process, including a valid credit card number that You are authorized to use if You are registering for a paid Subscription.

Free Trial. CandySeat may make all or part of the CandySeat Platform available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to CandySeat, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by CandySeat upon receiving your registration, or (ii) the date You execute an Order Form for a Subscription under this Agreement. NOTWITHSTANDING SECTION 10, ACCESS TO THE CANDYSEAT PLATFORM IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND DURING THE FREE TRIAL. YOUR DATA ENTERED AND ANY SPECIFIC SETTINGS OR PREFERENCES YOU OR YOUR END USERS MAKE DURING THE FREE TRIAL WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION OR EXPORT SUCH DATA/SETTINGS PRIOR TO THE EXPIRATION OF THE FREE TRIAL.

Subscription. CandySeat shall make the CandySeat Platform available to You and Your End Users pursuant to this Agreement and all Order Forms during the Term. You agree that your purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by CandySeat with respect to future functionality or features.

Support. Support via email and phone is available in connection with a paid Subscription.

                               3. Application-Specific Requirements

Mobile Apps. CandySeat may offer applications that allow You to access the CandySeat Platform on Your mobile device, including, for example, the Windows Phone and devices running the Android or iOS operating system. Mobile devices must be purchased separately and are not included in Your Subscription. CandySeat mobile apps require an active internet connection, and may incur data charges with Your wireless carrier, including roaming charges where applicable. CandySeat mobile apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such mobile apps offered by CandySeat shall constitute part of the CandySeat Platform, and as such their usage is subject to the terms and conditions of this Agreement.

                              4. Conduct and Use Guidelines

Ownership of Your Data. You retain all right, title and interest in and to all Your Data. CandySeat shall not access the Your Data except to respond to service or technical problems, or at Your request.

Collection of Your Data. You are responsible for all activities that occur in Your account and for Your End User’s compliance with this Agreement. You shall, and shall cause your End Users to, comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with the use of the CandySeat Platform, including without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws. You are responsible for the collection, legality, protection and use of Your Data that is stored on the System or used in connection with the CandySeat Platform. CandySeat will not be responsible for any loss or disclosure of Your Data (or any damages related thereto) resulting from You or Your End Users’ failure to adequately secure their user identification and passwords.

Acceptable Use. You and Your End Users shall use the CandySeat Platform for Your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the System or tamper with other customer accounts of CandySeat, (ii) access data on the System not intended for You, (iii) log into a server or account on the System that You are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any System or to breach the security or authentication measures without proper authorization; (v) render any part of the System unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the CandySeat Platform or make the CandySeat Platform available to a third party other than as contemplated in this Agreement; (vii) use the CandySeat Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (viii) provide to third parties any evaluation or Free Trial version of the CandySeat Platform without CandySeat’s prior written consent.

Communications Responsibilities. You shall be responsible for the content of all communications sent through the CandySeat Platform, and shall comply with all applicable laws and regulations in Your use of the CandySeat Platform. You agree that You will not use the CandySeat Platform to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of a third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation. You further agree that You shall not use the CandySeat Platform for the purpose of making emergency calls or providing emergency services.

Breach of Guidelines. In the event You or Your End Users materially breach this Section 4, CandySeat will endeavor to provide You with the opportunity to remove or disable access to the offending material or content, provided, however, that CandySeat reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, CandySeat reserves the right to immediately suspend access to the CandySeat Platform if such breach, in CandySeat’s opinion, is an imminent threat to the System, other customer accounts, or constitutes abusive or threatening behavior.

                              5. Third Party Providers

Acquisition of Non-CandySeat Products and Services. You acknowledge that third party products or services may be made available to You from time to time by CandySeat or third parties, and that Your decision to acquire any such products or services is solely between You and the applicable third party provider. Unless specifically set forth on an Order Form, CandySeat does not warrant or support third party products or services.

Third Party Applications and Your Data. You further acknowledge that if You acquire third party applications for use with Your Subscription, CandySeat may allow the providers of such applications to access Your Data in order to allow such applications to interoperate with the CandySeat Platform. CandySeat shall not be responsible or liable for any disclosure, modification or deletion of Your Data resulting from any such access by third party application providers.

                            6. Professional Services

Services. You hereby engage CandySeat to render the Services set forth on each SOW referencing this Agreement. The Services and each SOW are governed by this Agreement. Changes to the scope of the Services or any SOW may be made only in a writing signed by authorized representatives of both parties.

Acceptance of Deliverables. Promptly upon CandySeat’s notice that it has implemented or completed a Deliverable, You will test and evaluate each such Deliverable to determine whether each Deliverable conforms to the specifications for such Deliverable, as provided in the applicable SOW (the “Acceptance Test”). You may deliver a notice of rejection to CandySeat if a Deliverable fails the Acceptance Test, advising CandySeat as to which aspects of the Deliverable failed, with sufficient detail to allow CandySeat to reproduce such failure. CandySeat shall, at no cost to You, promptly remedy such failure and deliver the corrected Deliverable to You. In the event that CandySeat does not receive a notice rejection from You within two (2) business days (or such other period as may be expressly provided for in the applicable SOW) after delivery of a Deliverable, such Deliverable shall be deemed “Accepted” and the Acceptance Test for such deliverable shall be deemed completed pursuant to any applicable requirements of the relevant SOW or otherwise.

Your Responsibilities. You shall provide suitable equipment, information, and site and system access and facilities as are appropriate and reasonably necessary to enable CandySeat to perform the Services or which are specified in the applicable SOW. You acknowledge and agree that CandySeat’s performance is dependent on and subject to such performance by You or third parties of their responsibilities in a timely manner and subject to any assumptions regarding the Services referred to in the applicable SOW. CandySeat shall be entitled to rely on, and You shall be responsible for, all decisions, instructions and approvals of Your project administrative and other personnel in connection with the Services. You shall procure all consents, licenses, approvals or permissions as may be necessary to enable CandySeat to perform the Services, with such assistance from CandySeat as You may reasonably request.

                              7. Confidentiality

Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Your Data. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.

Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).

Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

                            8. Fees and Taxes.

Subscription Fees. Subscription Fees are set forth on the CandySeat website. Except as otherwise provided in the Order Forms, all Subscription Fees are quoted in United States currency; are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. CandySeat may modify the Subscription Fees on thirty (30) days’ email notice. In the event you upgrade your Subscription, the Subscription Fees applicable to Your new version of the CandySeat Platform will take effect immediately and be prorated for the rest of the month. If you downgrade, no adjustment will be made until your next billing term. A valid credit card that You have the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties. Unless otherwise agreed by the parties, paid Subscriptions will be billed in advance on a monthly or annual basis, starting on the Effective Date.

Services Fees. You shall pay to CandySeat all of the fees for Services specified in the SOWs. Except as otherwise provided in the applicable SOW, all fees are quoted in United States currency; payment obligations are non-cancellable; and Services Fees are non-refundable and shall not be subject to setoff or other reduction. Unless otherwise stated in the applicable SOW, Services Fees are due in advance upon execution of the applicable SOW.

Overdue Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.

Suspension of Platfrom Access and Service. If Your account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), CandySeat reserves the right to suspend Your access to the CandySeat Platform and CandySeat’s performance of Services under any applicable SOWs, without liability to CandySeat, until Your account is paid in full.

Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than CandySeat’s income taxes.

Expenses. If CandySeat is required to incur in any additional costs or expenses in providing You Services or support under this Agreement, CandySeat shall first obtain Your written approval.

                            9. Proprietary Rights

Proprietary Rights in the CandySeat Platform. The CandySeat Platform and all intellectual property rights therein and all intellectual property rights relating to the provision of support are owned or licensed by CandySeat. Except for the Subscription granted hereunder, nothing in this Agreement gives You any right, title or interest to the CandySeat Platform or related support.

CandySeat Platform Restrictions. You shall not: (i) modify, translate, or create derivative works CandySeatd on the CandySeat Platform; (ii) create any link to the CandySeat Platform or frame or mirror any content contained or accessible from the CandySeat Platform, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the CandySeat Platform; (iv) or access the CandySeat Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the CandySeat Platform.

Work Product. All work product produced as part of the Services and identified as a component of a Deliverable in a SOW, and all intellectual property in and to such work product, other than the Residuals or CandySeat Platform itself, shall be owned by You, are deemed “work made for hire” to the extent applicable, and are hereby assigned, sold and transferred to You.

Residuals. You acknowledge that CandySeat is in the business of creating and offering the CandySeat Platform. In connection with such business, CandySeat has developed and continues to develop the Residuals. To the extent Residuals are made available to You or required for the functioning or maintenance of a Deliverable, (i) You shall have a perpetual, irrevocable right to use, copy, modify, and create derivative works of such materials as necessary to support the applicable Deliverable, and (ii) nothing shall restrict CandySeat’s ongoing right to use any such Residuals.

                              10. Term and Termination

Term of the Agreement. This Agreement commences on the Effective Date and continues until the expiration or termination of your Free Trial or Subscription (as applicable), and each SOW executed hereunder (the “Term”).

Termination by You. You may cancel Your Subscription and terminate this Agreement at any time by providing notice to CandySeat via the account management functions on CandySeat’s website. Upon cancelling your account, CandySeat will allow a 30-day grace period in which you will be able to reactivate your account and restore your data. In the case you wish your data to be completely and permanently removed from CandySeat's application servers, please send an email to our support team at info@candyseat.com.

Termination for Cause. This Agreement and/or any applicable SOW may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately in the event of a material breach of Section 4 hereof.

Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 7 to 14.

                              11. Warranties and Disclaimers

Authority. Each party represents and warrants that it has the legal power to enter into this Agreement.

Functionality Warranty. CandySeat warrants that the CandySeat Platform will operate in substantial conformity with the then current version of the applicable documentation provided by CandySeat.

Security Warranty. CandySeat or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by CandySeat, whether by accident or otherwise.

Services Warranty. CandySeat warrants that it will perform the Services related to each Deliverable in a competent and workmanlike manner and in accordance with applicable industry standards for similar types of services.

Remedy. CandySeat shall, as Your sole and exclusive remedy and CandySeat’s sole and exclusive liability for a breach of the warranties set forth in Section 11 hereunder, (i) use commercially reasonable efforts at its own expense to cause the CandySeat Platform to comply with the warranties in

Section 11(b) and (c), and reperform any portion of the Services that are not provided in compliance with the warranty in Section 11(d), provided in each case that such noncompliance is promptly brought to CandySeat’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.

Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE CANDYSEAT PLATFORM IS PROVIDED “AS-IS,” AND CANDYSEAT DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. CandySeat does not warrant that the functions contained in the CandySeat Platform will meet Your requirements or that the operation of the CandySeat Platform will be uninterrupted or error-free. Further, CandySeat does not warrant that all errors in the CandySeat Platform can or will be corrected. CandySeat will not be responsible for any loss of Your Data or inability to perform certain tasks resulting from Your decision to downgrade your Subscription.

                            12. Limitation of Liability

Limitation of Liability. NEITHER YOU NOR CANDYSEAT, NOR OUR RESPECTIVE SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES PAID BY YOU FOR YOUR SUBSCRIPTION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

Exclusion of Consequential and Related Damages. YOU AND CANDYSEAT AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.

The limitations of liability under Sections 12(a) and 12(b) shall not apply to any indemnification provided by You or CandySeat hereunder.

Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to You.

No action against either party arising out of this Agreement may be brought by the other party more than six (6) months after the cause of action has arisen.

                            13. Mutual Indemnification

Indemnification by CandySeat.  CandySeat shall indemnify and hold You harmless against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against You by a third party alleging that the use of the CandySeat Platform, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if CandySeat reasonably believes that Your use of any portion of the CandySeat Platform and/or related support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then CandySeat may, at its expense: (i) procure for You the right to continue using the CandySeat Platform or support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the CandySeat Platform and/or support as set out herein. CandySeat shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is CandySeatd upon the combination, operation or use of the CandySeat Platform or support with other equipment or software not supplied by CandySeat or in a manner not consistent with CandySeat’s instructions.

Indemnification by You. You agree to indemnify and hold CandySeat harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against CandySeat by a third party arising from or relating to (i) Your breach of Section 4, or (ii) Your use of Your Data or the CandySeat Platform.

Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.

                              14. General Provisions

Entire Agreement. This Agreement, inclusive of the Order Forms, SOWs and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between You and CandySeat with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms or SOWs now or hereafter appended hereto, the terms of the Order Form or SOWs shall govern.

Marketing. Neither party may issue press releases to this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.

Relationship of You and CandySeat. You and CandySeat are independent contractors. This Agreement does not create a joint venture or partnership between You and CandySeat; neither party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.

Modifications and Waiver. CandySeat may revise this Agreement from time to time. Notice of any material changes to the Agreement will be provided via a link when logging into the CandySeat Platform. Any waiver of any right or remedy under this Agreement by CandySeat must be in writing and signed by CandySeat. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.

Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by the terms of this Agreement.

Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of Illinois, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of Santa Clara County, California, USA, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email.

Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.

Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.