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SUBSCRIPTION SERVICES AGREEMENT

FIRSTHAND DATA INC. dba KANNY ( “KANNY”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN OR ONLINE ORDER OR SIMILAR DOCUMENT WITH KANNY THAT REFERENCES THESE TERMS AND CONDITIONS ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS (“AGREEMENT”). READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM KANNY. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND KANNY. BY ENTERING INTO A WRITTEN OR ONLINE ORDER OR SIMILAR DOCUMENT WITH KANNY THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

DEFINITIONS

“Affiliates” means any company, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party.  For purposes of this definition “control” means the direct possession of at least fifty percent (50%) of the outstanding voting shares of an entity.

“Candidate” means an individual who is seeking a job or seeking his or her own professional development, and who has provided KANNY with information on the KANNY Site.

“Confidential Information” has the meaning given to it in Section 4.1.

“Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.

“Effective Date” means the date that the first Online Order is entered into between the Parties referencing this Agreement.

“Losses” has the meaning given to it in Section 10.1.

“Services” means the Subscription Service provided by KANNY. 

“KANNY Content” means all Content made available by KANNY to Customer in connection with Customer’s use of the Services. 

“KANNY Platform” means a cloud-based platform that is accessed by Users from a password-protected website for providing Users access to the Services.

“KANNY Insights” refers to the analysis provided by KANNY’s proprietary algorithm, which synthesizes Survey responses into a representation of a candidate’s character.

“KANNY Reviewer” refers to an individual who agrees to answer a Survey regarding their insights into the Candidate’s character. 

“KANNY Site” means a cloud-based platform that is accessed by Candidates and Reviewers to provide KANNY with Survey responses, which in turn generates KANNY Insights..

“Online Order” means each KANNY ordering document electronically entered into or signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Services provided to Customer by KANNY, sets out the prices for the Services and contains any other applicable terms and conditions.

“Subscription Service” means KANNY’s proprietary subscription-based software-as-a-service solution made available via the KANNY Platform.

“Suggestions” means suggestions, information, material, or other Content that Customer submits to KANNY in any form whatsoever, including any suggested improvements to the Services.

“Survey” means a series of questions directed to Reviewers.

“Users” means any employee of Customer or its Affiliates and/or independent contractor of Customer or its Affiliates that have been provided with permission by Customer to use the Services and who access the Services through the KANNY Platform.

SERVICES

Services.  KANNY shall provide Customer with the specific Services specified on an Online Order. Any conflict between the terms and conditions set forth in this Agreement and any Online Order shall be resolved in favor of this Agreement unless an Online Order makes specific reference to the section of this Agreement that is to be amended in the  Online Order.  Any exceptions expressly agreed upon in writing by the Parties pursuant to a particular Online Order will apply only for purposes of that Online Order, and will not be deemed to in any way amend, modify, cancel, or waive the provisions of this Agreement for any other Online Order. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by KANNY regarding future functionality or features.  Premium features may be subject to additional fees, as further specified in an Online Order.

Access and Use RightsSubject to the terms and conditions of this Agreement, and in consideration for the payment of fees set out on the applicable Online Order, Customer may, solely during the term of the applicable Online Order, access and use the Subscription Service solely for Customer’s internal business purposes.  This access and use right is restricted to use by Customer and its authorized Users and does not include the right to use the Subscription Service on behalf of any third party unless otherwise stated on the Online Order in relation to Affiliates.  Customer agrees: (a) that only Users are permitted to use the Subscription Service; (b) that it is responsible for Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service from unauthorized use and/or access. 

Licensed Volume.  Customer acknowledges that access and use of the Subscription Service is limited for use up to the number of applicable Users or other metric purchased by Customer and set out on the applicable Online Order (the “Volume Limitations”).  In the event that the Subscription Service is used in excess of the Volume Limitations then Customer shall be obligated to pay KANNY for the number of applicable Users in excess of such Volume Limitations at the rates set forth in the Online Order. Customer may also add subscriptions for additional Users by executing a new Online Order or an amendment to an existing Online Order at any time. 

Affiliates Not Under Direct Online Order.  Subject to the terms of the Online Order, Customer may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates.  To the extent that Customer is unable to satisfy any liabilities caused by any acts or omissions by an Affiliate, KANNY may seek to satisfy such liabilities directly from an Affiliate. Any license restrictions set out on an Online Order shall be deemed to apply to both Customer and its Affiliates.  By way of example, if an Online Order limits use of the Subscription Service to twenty (20) Users, then the use by Customer and its Affiliates, when aggregated together, shall not exceed a total of twenty (20) Users. 

FEES; PAYMENT TERMS

Fees.  Customer agrees to pay KANNY for Services provided and expenses incurred in accordance with and at the fees specified in each Online Order.  Unless otherwise set forth on the Online Order, payment shall be due within thirty (30) days after receipt of KANNY’s invoice and shall be made in US Dollars.  Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due.  In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by KANNY in connection with any Services rendered provided that Customer has pre-approved of such travel and expenses in writing in advance.

Taxes.  Fees are exclusive of taxes.  Customer shall be responsible for the payment of all sales, use, value added taxes (VAT) and similar charges arising from or relating to the Services rendered hereunder, except for taxes related to the net income of KANNY and any taxes or obligations imposed upon KANNY under federal, state and local wage laws.

CONFIDENTIALITY

Confidential Information.  During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The KANNY Content, KANNY Platform and Services shall be deemed KANNY’s Confidential Information.  The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement.  The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party.  Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used.  The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and Customer further agrees that neither it or any of its Users shall publicly post any analysis or reviews of the Services, or any KANNY Insights without KANNY’s prior written approval.  A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

Exclusions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.  The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

Injunctive Relief.  Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate.  Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

SPII.  Notwithstanding anything to the contrary herein, neither Customer nor its Users shall upload into the Subscription Service or provide to KANNY any sensitive personally identifiable information (“SPII”) including, but not limited to an (i) individual’s government-issued identification number (including Social Security number, driver’s license number, or state-issued identification number); (ii) confidential financial information, financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual’s financial account; or (iii) biometric, genetic, health, medical, or medical insurance data.  To the extent that Customer or any of its Users uploads any such SPII into the Subscription Service then Customer (and not KANNY) shall be solely responsible for all liability or obligations with respect to such SPII under any and all circumstances including but not limited to any data breach or fines under applicable laws.

HOSTING SERVICES

Hosting Provider.  Customer agrees and approves the use of MS Azure Platform as a hosting subcontractor for the Services.

WARRANTIES

Subscription Service Warranty.  KANNY warrants that during the term of any Online Order for the Subscription Service, the Subscription Service will conform, in all material respects, with the Online Order. KANNY makes no warranty regarding features or services provided by third parties.  For any breach of the above warranty, KANNY will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. Customer will provide KANNY with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  Such warranty shall only apply if the Subscription Service has been utilized by Customer and its Users in accordance with the Online Order and this Agreement.  

No Other Warranty.  KANNY DOES NOT WARRANT THAT THE SERVICES WILL RESULT IN ANY PARTICULAR JOB HIRING OR RETENTION OUTCOMES, OR THAT A CANDIDATE’S JOB PERFORMANCE WILL MEET A CERTAIN STANDARD. KANNY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 6.1 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY KANNY. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

JOB PERFORMANCE DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT KANNY IS NOT RESPONSIBLE FOR, AND DOES NOT IN ANY WAY GUARANTEE, THE CHARACTER OR JOB PERFORMANCE OF ANY CANDIDATE HIRED BY CUSTOMER. CUSTOMER ACKNOWLEDGES THAT KANNY INSIGHTS ARE BASED ON REVIEWS OF A CANDIDATE’S PAST PERFORMANCE, WHICH KANNY CANNOT VERIFY, NOR GUARANTEE TO BE PREDICTIVE OF FUTURE PERFORMANCE. CUSTOMER UNDERSTANDS THAT THE DATA AND INFORMATION GENERATED THROUGH USE OF THE SERVICES IS NOT INTENDED TO BE USED INDEPENDENTLY AS A RECRUITING OR CANDIDATE SELECTION TOOL. KANNY IS NOT A RECRUITER.

LIMITATION OF LIABILITY

Limitation. EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND/OR DATA) IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF KANNY TO CUSTOMER FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE SERVICES FEES PAID BY CUSTOMER TO KANNY UNDER THE ONLINE ORDER FOR THE SERVICES WHICH FORM THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE PROVISIONS OF THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES.  THE PRICING SET FORTH IN EACH ONLINE ORDER REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.   

TERM

Term.  This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 8.2 or 8.3 below. The term of each Online Order for the Subscription Service shall be set out on the Online Order. 

Suspension.  KANNY reserves the right to suspend Customer’s access to the Subscription Service: (i) for scheduled or emergency maintenance, (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to KANNY (beyond any applicable notice and cure period), (iii) if Customer’s use of the Subscription Service results in (or is reasonably likely to result in) damage to or material degradation of the Subscription Service that could interfere with KANNY’s ability to provide access to the Subscription Service to other users, or (iv) if KANNY receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires KANNY to suspend or terminate Customer and/or any authorized User’s access to the Subscription Service.

Termination.  Notwithstanding the foregoing, either Party may terminate this Agreement or any Online Order (i) immediately in the event of a material breach of this Agreement or any such Online Order by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  Termination of an Online Order shall not be deemed a termination of this Agreement.  Termination of this Agreement shall, however, terminate all outstanding Online Orders.  Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason. Customer shall continue to access Services until the conclusion of the final day of the term for which it has paid., if at such time there are no outstanding Online Orders then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Online Order.

 Effect of Termination.  Upon any termination or expiration of this Agreement or any applicable Online Order, KANNY shall no longer provide the applicable Services to Customer and Customer shall promptly cease and cause its Users to promptly cease using the Services. Customer shall pay KANNY for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession.

OWNERSHIP; USE OF CONTENT; OBLIGATIONS

Subscription Service. Customer acknowledges and agrees that as between KANNY and Customer, all right, title and interest in and to the Subscription Service and including all modifications and configurations, all KANNY Content, including the KANNY Insights, and all of KANNY’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to Customer by KANNY in providing the Subscription Service and all derivatives thereof are and shall remain KANNY’s or its licensors’. The KANNY name, all KANNY logos, and the product names associated with the Subscription Service are trademarks of KANNY or third parties, and no right or license is granted to use them.  Customer and its Users shall not remove any KANNY trademark or logo from the Subscription Service.  During the term of this Agreement, KANNY grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 11.2), royalty-free right to use, display, transmit, and distribute the KANNY Content solely in connection with Customer’s permitted use of the Subscription Service.  KANNY shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from Customer’s use of the Subscription Service) provided, however, that KANNY shall not disclose any such data unless such data is in an aggregated, anonymized form that would not permit a third party to identify the data as associated with Customer or any of its Users.

Suggestions.  If Customer or a User provides any Suggestions to KANNY, KANNY may use the Suggestions for the purposes of modifying or customizing the KANNY Platform or the Services. Customer understands that Suggestions provided to KANNY may be used for implementing features or functionalities of the KANNY Platform, KANNY Site, or Services that may be used by Customer or a third party; provided, however, notwithstanding the foregoing, the Parties acknowledge and agree that KANNY shall be solely responsible, at KANNY’s sole discretion, for properly securing any additional intellectual property rights relating to KANNY’s implementation of any Suggestions. 

Customer Obligations.  Customer is responsible for all activities conducted under its User logins and for its Users’ access and use of the Services and compliance with this Agreement, including security of login information and passwords.  Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited.  Customer and its Users shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service.  Except as expressly permitted in this Agreement, Customer shall not use the Subscription Service on behalf of any third-party or allow any third party to use the Subscription Services. Customer shall be liable for the use of the Services and any breach of this Agreement by any of its Users.  In addition to KANNY’s other remedies hereunder, KANNY reserves the right upon notice to Customer to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in this Agreement.  Neither Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation. 

INDEMNITY

KANNY Indemnification.  Subject to Section 10.3 below, KANNY will indemnify, defend and hold Customer and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable legal fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer or any of its Affiliates alleging that the use of the Services or Work Product as permitted hereunder infringes any United States patent, copyright, or trademark, or constitutes a misappropriation of a trade secret of a third party.  Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement or applicable law, (b) use of the Services or Work Product after KANNY notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Services or Work Product made other than by KANNY (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services or Work Product with materials, software or equipment which was not provided by KANNY, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by KANNY with Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s custom requirements or specifications resulted in the infringement.  If the Services are held to infringe, KANNY will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; (b) to replace the Services with non-infringing Services; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Online Order and refund to Customer any prepaid unused fees paid to KANNY for the infringing Services.  The rights and remedies granted Customer under this Section 10.1 state KANNY’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statute, common law or otherwise.

Customer Indemnity.  Subject to Section 10.3 below, Customer shall indemnify, defend, and hold KANNY and its Affiliates harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against KANNY or any of its Affiliates that arises out of or results from a claim (i) arising out of a dispute that arises between Customer and Candidate (ii) arising out of Customer’s breach of Section 9.3 above or violation of any applicable law or regulations or (iii) arising from or attributable to any property damage, bodily injury or death resulting from the use of the Services unless caused by the gross negligence or willful misconduct of KANNY.

Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).

GENERAL

Entire Agreement.  This Agreement, including all Annexes attached to this Agreement and all Online Orders, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating to this Agreement and is binding upon the Parties and their permitted successors and assigns.  Only a written instrument that refers to this Agreement or the applicable Online Order and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Online Order provided, however, KANNY reserves the right to modify this Agreement by posting a new Agreement online and notifying Customer of such new agreement provided that such new Agreement will only be applicable for any Online Order entered into after the date such new Agreement goes into effect.  Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer, including links or references to other agreements or online terms shall be of no force or effect, even if the purchase order is accepted by KANNY. 

Assignment.  This Agreement shall be binding upon and for the benefit of KANNY, Customer and their permitted successors and assigns.  Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void; provided that either Party may assign this Agreement and all Online Orders, without consent, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. KANNY may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that, except with respect to MS Azure, KANNY shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their fees.

Governing Law and Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflict of law provisions.  The federal courts in the Northern District of California and state courts sitting in Santa Clara County, California will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.  The Parties agree that the Uniform Computer Information Transactions Act or any version thereof, adopted by any state in any form (“UCITA”), shall not apply to this Agreement and, to the extent that UCITA is applicable, the Parties agree to opt-out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein. The application of the United Nations Convention on Contracts for the Sale of International Goods (CISG) shall not apply.

Headings.  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

Relationship of the Parties.  KANNY and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.  Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

Force Majeure.  No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make previously owed payments to the other Party hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force MajeureEvent”) that frustrates the purpose of this Agreement: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or similar influenza or bacterial infection (which is defined by the United States Center for Disease Control as virulent human influenza or infection that may cause global outbreak, or pandemic, or serious illness); (j) emergency state; (k) shortage of adequate medical supplies and equipment; (l) shortage of power or transportation facilities; and (m) other similar events beyond the reasonable control of the Impacted Party.

Notices.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt to the address of the Party set forth on the applicable Online Order or (iii) on the delivery date if delivered by email to david@kanny.com provided receipt of such email is confirmed.  Either Party may change its address by giving written notice of such change to the other Party.

Modifications to Subscription Service.  KANNY may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.

Publicity.  Customer hereby grants KANNY a non-exclusive license solely during the term of this Agreement to list Customer’s name and display Customer’s logo in Customer section of KANNY’s website and to use Customer’s name and logo in KANNY’s customer lists but only to the extent that other customers of KANNY are also listed on such list. Any other use by KANNY of Customer’s name, logo or trademark requires Customer’s prior written consent.

No Third Party Beneficiaries.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

Waiver and Severability.  Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.