MACBACH HEALTHCARE SOLUTIONS
Client Terms of Service
Please review this information carefully. Last updated November 16, 2023.
Master Subscription Agreement: Table of Contents
- Term and Termination
- Products and Services
- Macbach's Use of Client Content
- Representation, Warranties and Covenants; Disclaimer
- General Provisions
This Master Subscription Agreement (this "Agreement") is entered into between Macbach Healthcare Solutions (Macbach) and their clients (hereinafter referred to as "Client") on the date a quote is signed. This Agreement governs the Client's use of Macbach's Products and Services. By accepting this Agreement, Client agrees to the terms of this Agreement. If an individual enters this Agreement on behalf of a company or other legal entity, Client represents that the individual has the authority to bind such Client to these terms and conditions. If you do not have such authority or do not agree with these terms and conditions, you must not accept this Agreement and may not use the Products and Services. If any part of this agreement is executed or an invoice is paid, the contract is implied and will be enforceable in lieu of a signature to this document. This Agreement was last updated on November 16, 2023. It is effective between Client and Macbach when both Parties execute the applicable Subscription Schedule. Macbach and the Client are each referred to herein as a "Party" and collectively as the "Parties."
1.1 Client Content
Client Content means all business data and other information or content made available by or on the Client's behalf in connection with its use of the Products and Services. As between Macbach and the Client, the Client retains ownership of all rights to the Client Content except as may otherwise be indicated in a Subscription Schedule or Statement of Work.
1.2 Subscription Schedule and Statement of Work
Macbach offers its clients various Products and Services (as defined above under Section 1.) that may be purchased as subscriptions. Macbach reserves the right, in its sole discretion, to make any changes to the Products and Services that it deems necessary or useful to (a) maintain or enhance (i) the quality or delivery of Macbach's Products and Services to its customers, (ii) the competitive strength of or market for the Products and Services or (iii) the Products and Services’ cost efficiency or performance; or (b) to comply with applicable law. The specific Product and Services subscriptions purchased by Client and made available by Macbach will be identified in one or more separate, written schedules that are entered into by both Parties and reference this Agreement (each, a “Subscription Schedule” or “Statement of Work,” as applicable). Each Subscription Schedule and Statement of Work will set forth:
- the Products and Services for which Macbach is providing the Client subscriptions;
- the start date and end date of such subscriptions;
- the fees that Client will pay to Macbach for such subscription, and the payment terms; and
- other terms applicable to such subscriptions (for example, the number of purchased Client subscriptions and usage restrictions applicable to particular subscriptions).
Any Subscription Schedules and Statements of Work signed by both Parties will become a part of this Agreement and are incorporated herein by reference. To the extent that any provision of a Subscription Schedule or Statement of Work conflicts with any provision set forth elsewhere in this Agreement, the provision outlined in the Subscription Schedule or Statement of Work will control.
Statement of Work Documents:
Collectively, the above product subscriptions Macbach will provide will hereinafter be referred to as "Products and Services."
1.3 Publishers (in reference to "Local Listing" Services
Certain Products may involve the distribution of Client Content, including but not limited to business listing information (e.g., store location, hours of operation, and contact information) and/or other interactions with third parties (the “Publishers”) that own or operate online business directories, search web sites, social media web sites, mobile apps or other online properties (the “Publisher Sites”). Client further acknowledges and agrees that (i) all Client Content shall be subject to the Publishers’ character limits, quality standards, and other applicable content policies and that any such content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion, or modified at any time to comply with such policies, (ii) Macbach does not guarantee that any Client Content will be displayed on any Publisher Site and (iii) the appearance and/or location of any Client Content placement may change at any time.
For each Product subscription, the Client will pay Macbach the applicable fees in the amounts in accordance with the payment terms set forth on the applicable Subscription Schedule or Statement of Work. Fees do not include any taxes, levies, duties, or similar government assessments, including, for example, value-added, sale, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, "Taxes"). The client is responsible for paying any Taxes associated with its purchases hereunder. Suppose Macbach has the legal obligation to pay or collect Taxes for which the Client is responsible under this section. In that case, Macbach will invoice the Client, and the Client will pay that amount unless the Client provides Macbach with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Macbach is solely responsible for taxes assessed against it based on its income, property, and employees. Purchased subscriptions may not be canceled, and all fees paid are non-refundable. The client agrees that its purchases are not contingent on Macbach's future functionality or feature delivery.
2.2 Late Payment
Late payments will bear interest at the rate of 5% of the overdue balance per month or the maximum amount permitted by law if lower. Suppose any amount owed by the Client is overdue. In that case, Macbach may suspend Client's access to Products and Services without limiting its other rights and remedies until such amounts are paid in full or terminate this Agreement under Section 3.2 ("Termination").
3. Term and Termination
The term of this Agreement begins on the Effective Date and shall continue, with respect to any Subscription Schedule or Statement of Work, for a one (1) year period ("the Term"). Upon the expiration of the original term or any renewal term, the term shall be automatically renewed for one year unless, at least sixty (60) days before the renewal date, either party gives the other party written notice of its intent not to continue the Agreement. During any renewal term, the terms, conditions, and provisions outlined in this Agreement shall remain in effect unless modified under Section 10.8.
Either Party may terminate a Subscription Schedule or Statement of Work upon thirty (30) days prior, written notice to the other Party if the other Party commits a material breach of such Subscription Schedule or Statement of Work (or of this Agreement), provided, however, that such Subscription Schedule or Statement of Work will not terminate if the other Party cures such breach by the end of the thirty (30) day period. In the event Client terminates a Subscription Schedule or Statement of Work for Macbach's uncured material breach in accordance with the previous sentence, Client would be entitled to a pro-rata refund of any prepaid fees for the remaining portion of the Term of such Subscription Schedule or Statement of Work following such termination. In addition, Macbach may terminate any Subscription Schedule or Statement of Work upon notice to Client if Macbach reasonably believes that Client is engaging in any business or conduct that may be illegal, fraudulent, or tortious or if Macbach determines in good faith that termination is necessary to comply with its obligations to Publishers following a breach of this Agreement by Client.
3.3 Effects of Termination
Upon termination of the Agreement for any reason: (a) any amounts owed to Macbach under this Agreement, including any Subscription Schedule(s) and/or Statement(s) of Work before such termination will be immediately due and payable; (b) Macbach reserves the rights in its sole discretion to disable all access to the Products and Services, using any lawful means, including, but not limited to those that disable the Client’s access automatically with time; and (c) the Client shall immediately cease all use of the Products and Services.
The following provisions shall survive any termination of this Agreement: Section 2 (“Payment”); Section 3.3 (“Effects of Termination”); this Section 3.4 (“Survival”), Section 4.2 (“Restrictions on Client’s Use”), Section 4.3 (“Proprietary Rights”); Section 5 (“Macbach's Use of Client Content”); Section 6.2 (“Representations and Warranties; Disclaimer”); Section 7 (“Liability”); Section 8 (“Indemnification”); Section 9 (“Confidentiality”); and Section 10 (“General Provisions”).
4. Products and Services
4.1 Client's Use
Subject to and conditioned on Client’s payment of the fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Macbach hereby grants Client a limited, non-exclusive, non-transferable (except as permitted under Section 10.3 (“Assignment”)) right to access and use the applicable Products and Services during the term of each applicable Subscription Schedule or Statement of Work in accordance with the Agreement. Client agrees that it will only make available Client Content that it knows is true and relates to its business. Client agrees that it shall take commercially reasonable measures (which shall be no less stringent than those it uses to protect Client’s similar information) to safeguard all information related to the access and use of the Products and Services, including (but not limited to) login information, account passwords and API keys, if applicable. Suppose the Client becomes aware of unauthorized access to any of its accounts. In that case, it shall immediately notify Macbach in writing and work cooperatively with Macbach to resolve problems related to unauthorized access.
4.2 Restrictions on Client's Use
Except as expressly provided in this Agreement or any applicable Subscription Schedule or Statement of Work, Client will not: (i) copy, modify, prepare derivative works of, decompile, or reverse engineer any Product and Services, or any portion of any of the Products and Services, (ii) use the Products and Services to store or transmit any malware, or for any unlawful or fraudulent purpose, (iii) use the Products and Services to create or assist a third party in creating a competing product, (iv) bypass or breach any security device or protection used by the Products and Services, (v) access or use the Products and Services in any manner or for any purpose that infringes or misappropriates or otherwise violates any intellectual property right of any third party or (vi) sell, resell, license, sublicense, distribute, rent or lease any Products and Services.
4.3 Proprietary Rights
Except as expressly provided in this Agreement or any applicable Subscription Schedule or Statement of Work, as between Client and Macbach, Macbach owns and retains all rights, title, and interest (including all intellectual property rights) in and to the Products and Services, including all aspects of the technology and branding, and any software or other materials including without limitation any analytics, reports or aggregated, anonymized data developed or created by or on behalf of Macbach in connection with delivery of the Products and Services hereunder. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Products and Services, whether expressly, by implication, estoppel, or otherwise.
5. Macbach's Use of Client Content
Suppose Macbach identifies any Client Content that is inaccurate or contains errors (e.g., the incorrect spelling of a city name or a wrong zip code) or non-compliance with a Publisher’s formatting guidelines (e.g., use of unsupported special characters). In that case, Macbach may (but is not required to) modify the Client Content to render it true in addition to its other available rights and remedies.
Client acknowledges that various Products and Services involve the provision of Client Content to Publishers for use and publication and that such Publishers may require nonexclusive, perpetual, irrevocable, royalty-free, unlimited use rights (or a subset of such rights) with respect to such Client Content, including, but not limited to, rights to publish and syndicate such Client Content.
Client grants Macbach and its affiliates and each applicable Publisher a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable (through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display, and distribute the Client Content in each case only to the extent required by such Publisher.
6. Representations, Warranties and Covenants; Disclaimer
6.1 Representations, Warranties and Covenants
Each Party represents, warrants, and covenants that as of the Effective Date and at all times during the term of this Agreement: (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (ii) it has all corporate authority required to enter into this Agreement. Client represents, warrants, and covenants that as of the Effective Date and at all times during the term of this Agreement, it has obtained and grants Macbach sufficient rights to access and use Client Content to deliver the Products and Services in accordance with this Agreement.
EXCEPT AS EXPRESSLY OUTLINED IN SECTION 6.1, ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, COMPLIANCE WITH ANY APPLICABLE LAW, RULE, REGULATION, JUDGMENT, ORDER OR DECREE OF ANY GOVERNMENT, GOVERNMENTAL INSTRUMENTALITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. MACBACH SHALL HAVE NO LIABILITY FOR ANY PUBLISHER SITES, INCLUDING THEIR AVAILABILITY OR ANY CHANGE IN THE PUBLISHER SITES, FOR ANY DECISION BY A PUBLISHER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CLIENT, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii) OR (iii) OF SECTION 1.3 (“PUBLISHERS”) OF THIS AGREEMENT. To the extent that a Party may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
7.1 Liability Exclusion
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, LOSS OF DATA, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE PRODUCTS OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SUBSCRIPTION SCHEDULE OR STATEMENT OF WORK), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY THIRD-PARTY HOSTING PROVIDERS.
7.2 Limitation of Damages
EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE PRODUCTS OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SUBSCRIPTION SCHEDULE OR STATEMENT OF WORK), REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL FEES PAID BY CLIENT TO MACBACH UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD BEFORE THE DATE ON WHICH THE FIRST CLAIM ARISES.
Notwithstanding anything to the contrary, the exclusions and limitations outlined in Section 7.2 will not apply to (i) any damages arising from a Party’s fraud or willful misconduct, (ii) Section 8.1, (iii) any breach of Section 4, (iv) Client’s failure to pay any fees due under this Agreement or any Subscription Schedule or Statement of Work.
8.1 Client's Indemnity Obligation
The client will defend, indemnify, and hold Macbach and its affiliates harmless. Each of its and their respective officers, directors, employees, Publishers, contractors, and agents (collectively, “Macbach Indemnitees”) from and against all claims, actions, lawsuits, and investigations brought by a third party (“Third Party Claims”) and will pay any settlements, awards, fines and reasonable attorney’s fees and expenses and court costs (collectively, “Losses”) associated with such Third Party Claims, in each case to the extent arising from or relating to any Client Content and/or the conduct of Client’s business (including, but not limited to, any allegation that any Client Content infringes any third party patents, trademarks, copyrights or other proprietary rights, constitutes false advertising or is defamatory and/or that the Client Content or the conduct of Client’s business violates any applicable law or regulation).
8.2 Macbach's Indemnity Obligation
Macbach will defend, indemnify, and hold harmless, Client and its affiliates, and each of its and their respective officers, directors, employees, contractors and agents (collectively, “Client Indemnitees”) from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to: any allegation that Macbach's provision of the Products and Servicexs (excluding, for the avoidance of doubt, any Client Content or third party content provided through the Products and Services) infringes or misappropriates third party intellectual property rights; provided, however, that this indemnity will not apply to the extent the Third Party Claim is caused by: (i) the unauthorized (by Macbach) alteration or modification of the Products and Services by a Client Indemnitee, (ii) use of the Products in violation of this Agreement, (iii) the combination, operation or use of the Products and Services with any product, device, software or service not supplied by Macbach to the extent the combination creates the infringement, or (iv) Macbach's compliance with Client’s designs, specifications, requests, or instructions by Client to the extent the Third Party Claim is based on such compliance.
8.3 Indemnity Procedures
A Party seeking indemnification for a Third Party Claim under this Agreement will (i) give the other Party (the “Indemnitor”) written notice of the Third Party Claim promptly; provided, however, that the failure to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that Indemnitor demonstrates actual prejudice caused by such failure; and (ii) give the Indemnitor primary control of the defense of the Third Party Claim and negotiations for its settlement. The Indemnitor will have the right to compromise, settle, or otherwise dispose of the same if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor, provided, however, that the Indemnitor will not settle or consent to any entry of judgment in, any such Third Party Claim without obtaining either: (i) an unconditional release of the Party seeking indemnity (and all other Client Indemnitees or Macbach Indemnitees, as applicable) from all liability with respect to all claims underlying such Third Party Claim or (ii) the prior, written consent of the Party seeking indemnity. The Parties will reasonably cooperate in any such Third Party Claim. Suppose Macbach believes the Products and Services infringe or may be alleged to infringe a third party’s intellectual property rights. In that case, Macbach may, at its discretion: (i) obtain the right for Client, at Macbach's expense, to continue using the Products and Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Products and Services so that they no longer infringe. If Macbach does not believe the options described in this section are commercially reasonable, then Macbach, upon 30 days’ written notice, may terminate Client’s Subscription Schedule(s) or Statement(s) of Work for the affected Products and Services and provide Client with a refund of any prepaid fees covering the remainder of the term of the terminated Subscription Schedule(s) or Statement(s) of Work for the affected Products.
9.1. Under this Agreement, the Parties (including the Parties’ Affiliates) may have access to information that is confidential or proprietary to one another (“Confidential Information”). Confidential Information shall mean any information that is directly or indirectly disclosed or made accessible by or on behalf of a Party (or its Affiliates) (the “Disclosing Party”) that is marked as confidential or which, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary, including product specifications, pricing, data, proposals, business models, marketing plans and strategic plans, customer and employee information, financial information, software, reports or forms of the Disclosing Party.
9.2. The Party (or its Affiliates) receiving Confidential Information of the other (the “Receiving Party”) agrees to use such Confidential Information solely to perform its respective obligations under this Agreement and will take reasonable measures to avoid unauthorized disclosure or use, including, but not limited to, taking at least those measures it takes to protect its similar Confidential Information. Each Receiving Party agrees not to disclose any Confidential Information of the Disclosing Party to the Receiving Party’s employees and Representatives (defined below) except to those who need to know such information and who are already legally bound to maintain its confidentiality. The Parties acknowledge and agree that breach of this Section 9 may cause irreparable harm to a Disclosing Party, entitling the Disclosing Party to seek injunctive relief without requiring the posting of a bond in addition to all legal or equitable remedies available. Confidential Information shall not, however, include any information which (i) is publicly known and is made generally available through no fault of the Receiving Party; (ii) is already in possession of the Receiving Party without obligation of confidentiality at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s written records; (iii) is obtained by the Receiving Party from a third party without, to Receiving Party’s knowledge, a breach of such third party’s obligations of confidentiality; (iv) is independently developed by the Receiving Party without use of or reference to a Disclosing Party’s Confidential Information, as shown by the Receiving Party’s documentary records; or (v) is part of the Client Content.
If a Receiving Party is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the Receiving Party will (if lawful) provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party, at its sole expense, may seek a protective order or other appropriate relief. If such protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party or its employee will furnish that portion (and only that portion) of Confidential Information that is legally compelled or is otherwise legally required to disclose; provided, however, that the Receiving Party provides such assistance at the Disclosing Party’s expense and as the Disclosing Party may reasonably request in obtaining such order or other relief.
10. General Provisions
10.1 Relationship of The Parties
Each Party is an independent contractor of the other Party. Nothing herein will constitute a partnership between or joint venture by the Parties or constitute either Party as the agent of the other.
Neither Party may assign or otherwise transfer this Agreement without the prior, written consent of the other Party; provided, however, that, notwithstanding the foregoing, a Party may, without the consent of the other Party, assign or otherwise transfer this Agreement (including all of such Party’s rights and obligations hereunder) to any of its affiliates, subsidiaries, or to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity interests or all or substantially all of its assets. Any assignment or other transfer violating this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
Unless otherwise stated, each Party is permitted to use contractors, agents, and professional advisors (“Representatives”) in connection with this Agreement but is liable for their acts and omissions.
10.4 Export Compliance
To the extent applicable, the Products and Services and any derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Client represents that Client is not named on any U.S. government denied-party list. Client shall not permit third parties to access or use any Products and Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Syria, or Crimea) or violate any U.S. export law or regulation.
10.5 Notice, Contracting Entity, Governing Law and Jurisdiction
Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at its address set out below (or to any other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, or, if sent via email, upon sending by the sender, so long as the sender receives no bounce-back or other message failure alert and (b) if the party giving the Notice has complied with the requirements of this Section.
If to Client: to the Notice contact at the address and/or email address provided to Macbach by the Client. If to Macbach:
200 Central Avenue
4th Floor, Suite 375
St. Petersburg, FL 33701
Attention: General Counsel
Suppose the Macbach entity indicated on the Subscription Schedule, Statement of Work, or Order Form is Macbach Healthcare Solutions, LLC. In that case, this Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of law. Applying the UN Convention on Contracts for International Sale of Goods is expressly excluded. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Pinellas County, Florida, for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement and waive all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum. Each Party irrevocably submits to the jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
Suppose the Macbach entity indicated on the Subscription Schedule, Statement of Work, or Order Form is Macbach Ireland Limited. In that case, this Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of Ireland, without regard to principles of conflicts of law. Applying the UN Convention on Contracts for International Sale of Goods is expressly excluded. The Parties hereby consent and agree to the exclusive jurisdiction of the courts of Ireland for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement and waive all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum. Each Party irrevocably submits to the jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
10.6 Updates and Additional Terms
Macbach reserves the right to update, improve, replace, discontinue, modify, or alter the specifications for or functionality of the Products and Services from time to time. Client agrees that its use of and access to certain Products and Services are subject to the Product Terms and are incorporated into this Agreement.
10.7 Force Majeure
Except for failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by acts of god, strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, internet failure, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing Party.
No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties.
10.9 No Waiver
No waiver of any rights is to be charged against any Party unless such waiver is in writing and signed by an authorized representative of the party so charged.
Suppose any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction. In that case, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that, as nearly as possible, affects the Parties’ intent.
10.11 Entire Agreement
This Agreement (including any Subscription Schedules and Statements of Work) contains the entire understanding of the Parties with respect to the subject matter hereof. It supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement. To the extent, the Client provides a purchase order or similar document that includes additional terms and conditions, such terms and conditions shall be deemed rejected and of no effect regarding this Agreement and the Products and Services.
10.12 Electronic Signature
The Parties agree that the electronic signature of a Party to a Subscription Schedule, a Statement of Work, or an Order Form shall be as valid as an original signature of such Party and shall be effective to bind such Party to a Subscription Schedule, a Statement of Work, or an Order Form. The Parties agree that any electronically signed document (including, for example, a Subscription Schedule, whether signed through Hubspot or by providing a scan of the signed document) shall be deemed (a) to be “written” or “in writing,” (b) to have been signed and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files.
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