Software as a Service Agreement
IMPORTANT - READ CAREFULLY
THIS CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (HEREINAFTER, "CLIENT") AND CULTIVATE MARKETING TECHNOLOGIES, LLC, A DELAWARE LIMITED LIABILITY CLIENT ("CMT") WITH RESPECT TO CLIENT'S ACCESS TO AND USE OF THE SYSTEM AND SOFTWARE DESCRIBED BELOW. BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SYSTEM AND THE SOFTWARE, CLIENT AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CMT IS UNWILLING TO LICENSE THE SOFTWARE TO CLIENT OR TO GRANT ACCESS TO CLIENT TO ITS SYSTEM. IN SUCH EVENT, CLIENT MAY NOT INSTALL, USE OR COPY THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION, NOR MAY CLIENT ACCESS THE SYSTEM FOR THE PURPOSE OF USING THE SOFTWARE. CLIENT MUST ALSO PROMPTLY DESTROY ANY AND ALL COPIES OF THE SOFTWARE AND/OR DOCUMENTATION IT MAY HAVE CREATED. CMT MAY REVISE THE TERMS OF THIS AGREEMENT BY UPDATING THE FORM OF LICENSE AGREEMENT TERMS POSTED ON ITS WEBSITE: WWW.CODEMYDESIGNS.COM. CLIENT SHOULD VISIT THIS WEBSITE PERIODICALLY TO REVIEW THE TERMS OF THIS AGREEMENT, AS THEY ARE BINDING ON CLIENT.
1. DEFINITIONS.
1.1 "SaaS" means Software as a Service Provider Services.
1.2 "Customer Data" means the data that Client will process using the Software.
1.3 "Confidential Information" means (a) the Software and the System, its Documentation, training materials and methods, and related information; (b) the terms and conditions of this Agreement, including the pricing terms; (c) any other information expressly identified as confidential by the disclosing party, whether owned by the disclosing party or by a third party; and/or (d) information disclosed orally, provided such disclosure is identified at the time of disclosure as Confidential Information and subsequently described in writing and delivered to receiving party within thirty (30) days of the oral disclosure.
1.4 "Documentation" means CMT's then current published documentation for the Software.
1.5 "Downtime" means the period of time when the System in not responding, or does not correctly respond because of: (a) Software failure or error; (b) failure of hardware within the control of CMT or its hosting subcontractor; (c) an electric utility failure at CMT's hosting facility; or (d) a failure of the network to which the Host Server is connected, up to the point of connection to the public switched telephone network. Downtime does not include the period of time when the Host Server is not available as a result of (i) scheduled network, hardware or service maintenance and/or upgrades; or (ii) the acts or omissions of Client's employees, agents, contractors, or vendors, or anyone gaining access to CMT's network by means of Client's passwords or equipment.
1.6 "Host Server" means the server(s) on which CMT has the Software installed for Client's use.
1.7 "Insolvent" means: (a) generally failing to pay, or admitting in writing to an inability to pay debts as they become due; (b) applying for or consenting to the appointment of a trustee, receiver, or other custodian, or making a general assignment for the benefit of creditors; or (c) voluntarily commencing any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law seeking protection under such law; or (d) any bankruptcy, dissolution or liquidation proceedings commenced, foregoing protection (and in either circumstances such case or proceeding remaining undismissed for sixty (60) days); or (e) taking any corporate or other action to authorize, or in furtherance of, any of the foregoing.
1.8 "Intellectual Property Rights" means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, copyright, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered.
1.9 "Permitted Users" means no more than four (4) employees of Client, designated by Client, to have access to the Software to create and use Customer Data.
1.10 "Software" means CMT's CultivateCRMTM software program, as well as any updates made available by CMT via the Internet during the term of this Agreement and in any amendments thereto, in object code form. The term Software does not include source code in any form, nor shall it include any data inputted into the Software by Client or processed by the Client utilizing the Software.
1.11 "System" means the Software, the Host Server, and all equipment and connections maintained by CMT or its hosting subcontractor to allow Client to access the Software and Customer Data.
2. SAAS SERVICES. Subject to the terms and conditions of this Agreement, CMT hereby grants to Client's Permitted Users, during the Term, a nonexclusive, nontransferable, non-assignable right to (a) access the System; (b) use the Software; (c) process the Customer Data; and (d) store up to ten (10) megabytes of Customer Data in a Client database on the Host Server, as follows:
2.1 To use the Software only in the furtherance of the internal operations of the Client. In no event shall the Software be used to process information by or for the benefit of third parties, in the performance of a time-sharing, rental, or service bureau.
2.2 Use of the Software is restricted to the Permitted Users.
2.3 Client may use and distribute reports generated using the Software internally only, and may modify without restriction any reports generated using the Software.
2.4 To use the Documentation delivered with the Software in support of Client's use of the Software as authorized under this Agreement; provided that such Documentation may only be used by the Permitted Users.
2.5 Client may reproduce the Documentation solely for its own internal use provided that all titles, trademarks, trade names, copyright, restricted rights, and other proprietary notices of CMT are retained.
3. OWNERSHIP
3.1 Client acknowledges that the structure, organization, and code (both source code and object code) of the Software and all software components thereof are proprietary to CMT and/or CMT's licensors and that CMT and/or its licensors retains exclusive ownership of the Software, documentation, trademarks, and any other Intellectual Property Rights relating to the Software and the SaaS Website, including all modifications, enhancements, derivatives, and other software and materials developed hereunder by CMT, and all copies thereof. Client shall not sell, transfer, publish, disclose, display or otherwise make available the Software including any modifications, enhancements, derivatives, and other software and materials developed hereunder by CMT or copies thereof to others in violation of this Agreement. Further, the Software will be deemed to be Confidential Information of CMT, as defined below, and any such confidentiality restrictions shall apply accordingly. Except as otherwise expressly permitted hereunder, Client agrees not to copy or otherwise reproduce any of the Software, including any modifications, enhancements, derivatives, and other software and materials developed hereunder by CMT, in whole or in part. Client shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Software, including any modifications, enhancements, derivatives, and other software and materials developed by CMT. Client agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Client takes to secure and protect its own highly confidential information in order to maintain CMT's rights therein and to take appropriate action by instruction or agreement with its Permitted Users.
3.2 "CMTTM" and any other trademarks and service marks adopted by CMT to identify the Software and the SaaS Website and other CMT products and services belong to CMT. Client has no rights in such marks except as specified in writing between the parties.
3.3 Client agrees not to decompile, disassemble, reverse engineer, transfer electronically, copy, modify, enhance, or create any derivative works with the Software or any other CMT proprietary or confidential information.
3.4 Client agrees not to rent, electronically distribute, timeshare or operate a service bureau for the use of the Software or market the Software by interactive cable, Internet, or remote processing services or otherwise distribute the Software unless expressly permitted by this Agreement.
3.5 Client shall immediately inform CMT of (a) any claim or proceeding involving the Software that comes to its attention; and (b) any facts of which it becomes aware indicating that any person is infringing any Intellectual Property Rights of CMT or is engaging in unauthorized distribution of the Software.
3.6 In the event Customer Data exceeds one (1) gigabyte, Client agrees to pay CMT an additional SaaS Service Fee of five dollars ($5.00) per each additional 100MB.
4. CMT SERVICES AND ENHANCEMENTS.
4.1 CMT will:
(a) keep the System functioning properly;
(b) provide Documentation explaining how to access the System and use all functions of the Software;
(c) provide telephone support services between the hours of 9:00 am to 5:00 pm, EST, Monday through Friday (except recognized U.S. holidays) ;
(d) store and back-up the Customer Data in the System;
(e) maintain the security of the System and the Customer Data; and
(f) notify Client in writing of a planned change of the location of the Hosting Server at least sixty (60) days before implementing such change.
5. CLIENT'S RESPONSIBILITIES. Client shall be exclusively responsible for supervision, management and control of its use of the Software, System and Documentation, including without limitation; (a) assuring proper machine configurations, audit controls and operating methods; (b) creating, modifying, entering or reentering Customer Data.
6. OWNERSHIP OF CLIENT DATA. Client owns the Customer Data in any database created using the Software. Title to Customer Data and any copy thereof remains with Client. Notwithstanding Client's ownership of its Customer Data, CMT shall have the right to utilize such Customer Data, without identifying specific Client customers, solely for the purpose of analyzing and publishing the results of such analyses. Client's Customer Data may be deleted by CMT, without further notice to Client and without any liability to CMT, in the event that Client fails to pay all amounts when due hereunder and fails to cure such non-payment in full within ten (10) days of notice from CMT. In addition, Client will include in its website terms and conditions and/or privacy policy a provision wherein Client's customer grants to CMT the right to use such customer's Customer Data to help diagnose problems with our servers, administer and improve the SaaS Services and gather broad demographic information about Client's customers and their use of the Client's website
7. RETURN OF CLIENT DATA. Upon termination of this Agreement, and provided that Client's has fully paid all amounts due hereunder and under any hosting services agreement between CMT and Client, CMT shall promptly return Customer Data to the Client. CMT shall also provide a copy of Customer Data, as requested by Client, on a mutually agreeable media during the term of this Agreement, upon thirty (30) business days written notice to CMT for the Data copying fee of two hundred fifty dollars ($250.00).
8. MARKETING. Client will allow CMT to use Client's name and logo as a reference account for marketing purposes, including allowing CMT to reference Client on its reference account list of companies in print and on its website. Client retains the right to withdraw its assistance and to require CMT to withdraw any use of Client's name and trademark where Client reasonably considers that such assistance of use of such name or trademark is derogatory, defamatory or detrimental to Client or in any way damages Client's business or reputation.
9. PAYMENT. All Fees listed in the Order Form and Invoice are due and payable, in U.S. dollars, as described therein. Fees listed as payable upon first accessing of the System by Client are due and payable prior to CMT's provision of secure passwords and IDs. All other fees and charges hereunder are due and payable, in full, within thirty (30) days of receipt of CMT's invoice by Client. Client may, at CMT's election, be charged interest at the rate of five percent (5%) per month on all sums which remain unpaid and undisputed, or the maximum rate permitted by law, whichever is less. Client shall make all payments to CMT by way of credit card (Discover, MasterCard , VISA and American Express only) or by check payable to CMT.
10. TAXES. The Fees listed in the Order Form do not include taxes; if CMT is required to pay sales, use, property, value-added or other taxes based on the SaaS or Professional Services in this Agreement then such taxes shall be billed to and paid by Client. This Section shall not apply to taxes based on CMT's income.
11. PERFORMANCE AND AVAILABILITY. E-mails shall be sent at a rate of one hundred (100) per hour. CMT guarantees that the System and Software will be accessible at least 99.5% of the time, except for scheduled Downtime, each calendar month. As Client's sole and exclusive remedy, if Downtime, other than scheduled Downtime, exceeds the guaranteed level, then CMT agrees to credit toward the next month's Fees a prorated amount equal to the Fees attributable to such Downtime. Client must contact CMT within five (5) business days of Downtime to receive credit.
While CMT will make back-ups of customer data on a reasonable schedule, CMT IS NOT RESPONSIBLE FOR LOST OR DESTROYED CLIENT DATA, WHICH LOSS OR DESTRUCTION SHALL BE AT CLIENT'S SOLE RISK.
CMT will use its commercially reasonable efforts to notify Client at least twenty-four (24) hours in advance of any scheduled maintenance. CMT will use reasonable commercial efforts to perform scheduled maintenance outside of Client's normal business hours to provide the least amount of disruption.
12. WARRANTIES AND REPRESENTATIONS; WARRANTY DISCLAIMERS. CMT represents and warrants to Client that: (a) CMT has the power and authority to enter into this Agreement; (b) CMT is the owner of or licensee of all rights necessary and appropriate to grant the rights hereunder; (c) the services performed under this Agreement will be performed in a professional and workman-like manner in accordance with normally accepted industry standards, and with a degree of care, skill and expertise as is standard for the provision of services of a similar nature; (d) that the Software and System will perform substantially in accordance with the Documentation; (e) CMT will not violate any agreements with any third party as a result of performing its obligations under this Agreement, (f) there are neither pending nor threatened, nor to the best of CMT's knowledge, contemplated, any suits, proceedings, actions, or claims which would materially effect or limit the rights granted to Client under this Agreement. EXCEPT AS OTHERWISE PROVIDED HEREIN, CMT MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS, PURPOSE, OR MERCHANTABILITY, OR OF THE ACCURACY OF RESULTS OBTAINED THROUGH CLIENT'S USE OF THE SOFTWARE AND/OR SYSTEM. CLIENT ACKNOWLEDGES THAT ANY COMPANY DATA OR REPORT GENERATED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE SOFTWARE AND/OR SYSTEM IS USED AT CLIENT'S SOLE RISK AND DISCRETION. CMT IS NOT LIABLE OR RESPONSIBLE FOR ANY RESULTS GENERATED THROUGH THE USE OF THE SOFTWARE OR SYSTEM. CMT DOES NOT WARRANT OR REPRESENT THAT ACCESS TO THE SOFTWARE OR SYSTEM WILL BE UNINTERRUPTED, ERROR FREE OR SECURE. OPERATION OF THE SYSTEM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF CMT'S CONTROL.
13. CONFIDENTIAL INFORMATION.
13.1 Each party acknowledges it may have access to Confidential Information of the other party. Each party agrees to keep the Confidential Information of the other party confidential and to take all reasonable precautions, at least to the same degree of care and precautions the recipient would take to protect the confidential nature of its own information, not to disclose, copy, distribute or otherwise disseminate the Confidential Information to any third parties. The receiving party may disclose the Confidential Information only to those employees, agents and subcontractors who have a legitimate business reason to have such access, and are subject to the requirement to abide by a non-disclosure agreement substantially similar to this Agreement's non-disclosure obligations.
13.2 The obligations of this Section shall not apply to information (a) which is published or available to the public other than by breach of this Agreement; (b) otherwise rightfully received by the non-disclosing party from a third party without obligations of confidentiality; (c) independently developed by the non-disclosing party's employees having no access to the disclosed information; (d) known to the non-disclosing party before receiving the Confidential Information from the disclosing party under this or any prior agreement of the parties; (e) disclosed by the disclosing party to a third party without restrictions; or (f) is disclosed under operation of law; or (g) is disclosed by recipient with discloser's prior written approval.
14. ENJOINED USE. If Client's use of the Software or the System under the terms of this Agreement is, or in Client's opinion is likely to be, enjoined due to a claim of infringement or other violation of a third party's intellectual property rights, then CMT will, at its sole election and expense, either (a) obtain for Client the right to continue using the Software or the System; (b) replace or modify the Software or System so that it becomes non-infringing provided such substitute or modified Software or System is functionally equivalent to the original or otherwise meets Client's needs as determined by Client, and is compatible with the same items as the original, and further provided that CMT reimburses Client for data conversion and other costs reasonably incurred by Client as a result of such modification or replacement; or (c) if such remedies are not reasonably available, promptly refund to Client the pro rata unused portion of the fees paid to CMT, terminate this Agreement, and relieve Client of any further payment obligations hereunder.
15. INDEMNIFICATION.
15.1 Client will indemnify and hold CMT, its directors, managers, officers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising from or in connection with: (i) the use of the Software by Client or any of its Permitted Users, whether or not Client has knowledge of or has authorized any unpermitted access or use, except for claims for which CMT is obligated to indemnify Client pursuant to this Agreement; (ii) any information or results obtained through use of the Software and/or System; (iii) any negligent acts, omissions, or willful misconduct by Client and/or Permitted Users, or by Client's or Permitted Users' use of the Software and/or System; and (iv) any breach of this Agreement by Client and/or its Permitted Users.
15.2 CMT shall indemnify and hold Client, its directors, shareholders, officers, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising from or in connection with: any third-party claim(s) that the Software and/or System, used as licensed herein, infringes any United States patent, license, trademark, copyright, trade secret or any other intellectual property right. If an infringement claim is made or appears possible, CMT will, at CMT's sole option: (i) secure for Client the right to continue to use the Software and to access the System; (ii) modify or replace the Software and/or System so that they are non-infringing but functionally equivalent; or (iii) terminate the licenses granted hereunder and refund a prorata amount of paid but unearned Fees paid by Client. CMT shall have no obligation to the extent any claim is based in whole on modification of the Software and/or System by Client, or the use of the Software and/or System with any other software not authorized by CMT. CMT will indemnify and hold Client, its directors, shareholders, officers, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising from or in connection with: any third-party claim resulting from any negligent acts, omissions, or willful misconduct by CMT.
15.3 The indemnification obligations indicated in this Section are contingent upon (a) the party to be indemnified ("Indemnified Party") promptly notifying the indemnifying party ("Indemnifying Party") in writing of the claim to be indemnified; (b) the Indemnified Party allowing the Indemnifying Party, at its expense, to direct and control all defense, settlement, or compromise negotiations; and (c) the Indemnified Party providing the Indemnifying Party with full information and assistance that may be required to defend the claim.
16. LIMITATION OF LIABILITY. CMT'S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM THIS AGREEMENT, REGARDLESS OF THE NATURE OF SUCH CLAIM, SHALL NOT EXCEED THE TOTAL SAAS FEES PAID BY CLIENT HEREUNDER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. CMT SHALL NOT BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY, AND EVEN IF CMT HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY CMT. CLIENT AGREES THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 16 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES THAT CMT HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
17. TERM, RENEWAL TERM, ADDITIONAL USERS, AND TERMINATION.
17.1 This Agreement shall become effective on the Effective Date and shall be valid for a period of twelve (12) months (the "Initial Term") Upon the expiration of the Initial Term, this Agreement may be renewed by the mutual written agreement of the parties for succeeding additional twelve (12) month terms (each, a "Renewal Term"). Subject to Section 17.2, below, Client may terminate this Agreement, without cause, during the Initial Term if it provides at least thirty (30) days' written notice of termination to CMT and further, provided, that such notice is accompanied by payment of fifty percent (50%) of the total fees due for the remainder of the Initial Term. Client may terminate this Agreement, without cause, during any Renewal Term if Client provides at least thirty (30) days' written notice of termination to CMT and further provided that such notice is accompanied by payment of the total fees due for the remainder of the calendar month during which such termination will become effective.
17.2 Nothwithstanding anything else contained in Section 17.1, above, in the event that Client has received a discounted fee rate from that set forth in the Fee Schedule or otherwise applicable at the time such fees are charged in return for Client's agreement to pay such fees in advance, Client shall not have the right to a refund for any fees paid in advance in the event that Client elects to terminate this Agreement without cause,
17.3 At any time either during the Initial Term or during any Renewal Term, either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. Furthermore, each party may terminate this Agreement at any time upon written notice if the other party ceases to conduct business (except for Force Majeure), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within sixty (60) days, or makes an assignment for the benefit of its creditors.
17.4 Upon expiration of this Agreement, provided that Client is not in breach and all amounts due and owing to CMT have been paid in full, Client, upon notice to CMT, may elect to receive an HTML version of the customized SaaS websites created for Client hereunder and a high-resolution JPEG or TIFF file containing all theme templates.
17.5 The SaaS Hosting Services Fee for the Renewal Term shall be invoiced by CMT at CMT's then published list price for SaaS Hosting Services.
17.6 Client may purchase at any time, during either the Initial Term or the Renewal Term, additional Permitted Users, in increments of four (4) Users, at an amount prorated from the SaaS Hosting Service Fee and remaining during either the Initial Term or the Renewal Term.
18. MISCELLANEOUS.
18.1 Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, natural disaster, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non performing party ("Force Majeure"), provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible.
18.2 Each party acknowledges that this is the complete and exclusive statement of the agreement between the parties, and that this Agreement supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties or by a change to the Agreement posted on the SaaS Website.
18.3 This Agreement may not be (i) assigned or (ii) transferred by merger by Client without the written consent of CMT. This Agreement shall be binding upon, and shall inure to the benefit of, the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns. No provision of this Agreement shall be deemed to confer upon any third party any remedy, claim, liability, reimbursement, cause of action, or other right whatsoever.
18.4 The headings and captions of the sections and paragraphs of this Agreement shall be for convenience only.
18.5 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect.
18.6 CMT and Client are not partners or joint venturers. Neither party is the agent, representative or employee of the other party and nothing in this Agreement will be construed to create any relationship between them other than an independent contractor relationship. Neither party will have any responsibility or liability for the actions of the other party except as expressly provided herein. Neither party will have any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party. Client's employees are not and shall not be deemed to be employees of CMT. Client shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen's compensation and any similar taxes associated with employment of Client's personnel.
18.7 All notices requests, reports, submissions and other communications permitted or required to be given by Client to CMT under this Agreement shall be deemed to have been duly given if such notice of communication shall be in writing and sent by personal delivery or by airmail, cable, telegram, facsimile transmission or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to CMT at the following address, unless CMT posts a different address on the SaaS Website: Cultivate Marketing Technologies, LLC, 40 E. Main St., #104, Newark, DE 19711.
18.8 All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other term.
18.9 Notwithstanding the termination, cancellation, or expiration of this Agreement, Sections 1, 3, 6, 9, 10, 12, 13, 15, 16, 17 and 18 of this Agreement shall survive.
18.10 This Agreement shall be governed by and construed and enforced in accordance with the internal substantive laws of the State of Delaware, without regard to its conflicts of laws principles.
