Version: [June 2024]
This Agreement is entered into as of the Effective Date by and between WinMagic and the Customer and sets forth the terms under which WinMagic shall provide the Services to the Customer. In consideration of the covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree to the terms and conditions of this Agreement.
1 DEFINITIONS
All capitalized terms used but not defined in this Agreement shall have the following meanings:
1.1 “Agreement” means this Services Agreement between WinMagic and the Customer including all Orders and SOWs between the Parties.
1.2 “Authorized Users” means individuals who are authorized under this Agreement to access and use the Cloud Services and is limited to the Customer’s and its Subsidiaries’ employees and contractors unless otherwise expressly stated in an Order or SOW.
1.3 “Cloud Services” means the software-as-a-service offering to be provided by WinMagic to the Customer as described in an Order.
1.4 “Controlled” means with respect to any entity the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.
1.5 “Customer Data” means any electronic data and information uploaded to the Cloud Services by the Customer, its Subsidiaries and Authorized Users to enable WinMagic to provide the Cloud Services and includes any designs, specification, instructions and directions provided by the Customer.
1.6 “Customer” means the entity entering into this Agreement, or Order with WinMagic.
1.7 “Documentation” means the user guides, online help, release notes, training materials and other documentation provided by WinMagic to the Customer regarding the use or operation of Cloud Services.
1.8 “Effective Date” means the date of the first Order entered into by the Parties.
1.9 “Malicious Code” means any code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses.
1.10 “Order” means any ordering document executed by WinMagic and the Customer which references this Agreement and pursuant to which the Customer orders Cloud Services.
1.11 “Parties” means WinMagic and the Customer; and “Party” means either WinMagic or the Customer.
1.12 “Services” means the services to be provided by WinMagic under this Agreement and any Order and which may include Cloud Services and Support Services.
1.13 “Subsidiary” means any entity Controlled by a Party.
1.14 “Support Services” means any technical support for Cloud Services that WinMagic shall provide to the Customer pursuant to an Order.
1.15 “WinMagic” means WinMagic Corp, a company incorporated under the laws of Ontario, having a place of business at 501-5770 Hurontario St., Mississauga, Ontario, Canada L5R 3G5
2 THE SERVICES
2.1 Generally. By (a) accepting this Agreement; (b) executing an Order ; or (c) accessing or using any Services, the Customer agrees to be bound by this Agreement and that this Agreement shall govern the provision of the Services to the Customer.
2.2 Cloud Services. WinMagic shall make Cloud Services available to the Customer subject to the terms of this Agreement and any Order. Cloud Services shall be provided in accordance with the software schedule found at 1. https://winmagic.com/en/saas-softwareschedule/, which may be modified or updated by WinMagic from time to time (the “Software Schedule”) which is incorporated by reference into this Agreement to the extent applicable to the Cloud Service and
the policies and procedures in relation to the Cloud Services, which are established by WingMagic from time to time.
2.3 Support Services. Support Services for the Cloud Services shall be provided in accordance with this Agreement, any Order and the support services schedule found at https://winmagic.com/en/saas-servicelevelagreement/, which may be modified or updated by WinMagic from time to time(the “Support Services Schedule”) which is incorporated by reference into this Agreement to the extent applicable to the Support Services.
2.4 Changes. The Customer acknowledges and agrees that WinMagic may, at WinMagic’s discretion and without notice to the Customer, modify the Cloud Service, Documentation, Software Schedule, Support Services Schedule, Processional Services Schedule, AI Schedule or Data Security Schedule (defined below) from time to time; provided, however any such modifications shall (a) replace all prior versions (as applicable); and (b) not materially reduce the service levels, functionality or security of the Services.
3 ACCESS TO AND USE OF SERVICES
3.1 Subsidiaries. The Customer may allow its Subsidiaries to access and use the Cloud Services; provided, that (a) the Customer causes each of its Subsidiaries to comply with the terms and conditions of this Agreement; (b) the Customer remains fully liable and responsible for the acts and omissions of its Subsidiaries; (c) any acts, omissions or breaches of this Agreement by a Subsidiary shall be deemed to constitute an act, omission or breach of this Agreement by the Customer; and (d) a Subsidiary’s right to access and use the Cloud Services pursuant to this Section 3.1 shall automatically terminate if the Subsidiary ceases to be a Subsidiary of the Customer. The Customer shall promptly notify WinMagic if a Subsidiary who is accessing or using the Cloud Services ceases to be a Subsidiary of the Customer.
3.2 Usage Restrictions. The Customer shall not (a) make the Cloud Services available to anyone other than the Customer, its Subsidiaries or Authorized Users, or use any Cloud Services or Documentation for the benefit of anyone other than the Customer and its Subsidiaries, unless expressly stated otherwise in an Order; (b) sell, resell, license, sublicense, distribute, rent or lease any Cloud Services or Documentation, or include any Cloud Services or Documentation in a service bureau or outsourcing offering;
(c) use the Cloud Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to store or transmit material in violation of any third party privacy rights; (d) use the Cloud Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Cloud Services; (f) attempt to gain unauthorized access to the Cloud Services or Documentation or its related systems or networks; (g) permit direct or indirect access to or use of any Cloud Services or Documentation in a way that circumvents a contractual usage limit (including Entitlements) or use the Cloud Services to access, copy or use any of WinMagic’s intellectual property except as expressly permitted by this Agreement, Order; (h) modify, copy or create derivative works of the Cloud Services or any part, feature, function or user interface of the Cloud Services; (i) copy Documentation except as permitted by this Agreement; (j) frame or mirror any part of the Cloud Services or Documentation; (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Cloud Services or Documentation or access it to (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics as the Cloud Services; (iii) copy any ideas, features, functions or graphics of the Cloud Services; or (iv) determine whether the Cloud Services are within the scope of any patent.
3.3 Rights of Suspension. WinMagic may suspend or limit the Customer’s access or use of the Cloud Services without incurring any liability to the Customer if (a) WinMagic experiences or reasonably believes it will experience a security threat or system failure that endangers the integrity of WinMagic’s internal systems; (b) WinMagic is directed to do so by any law enforcement or regulatory agency; (c) the continued performance of WinMagic’s obligations under this Agreement could result in WinMagic being in breach of any applicable laws; (d) WinMagic reasonably believes the Customer is in breach of Section 3.2; or (e) the Customer fails to pay any Fees that are not disputed by the Customer in accordance with Section 12 this Agreement. WinMagic shall (i) promptly notify the Customer in advance that it intends to suspend or limit access or use of the Cloud Services in accordance with this Section 3.3; and (ii) use commercially reasonable efforts to restore such access and use as soon as reasonably practicable after the cause of the suspension has been remediated by the Customer.
3.4 Client Server Software CSS. WinMagic provides client server software (“CSS”) as part of its Cloud Services at no additional fee during the subscription term of the applicable Order(s) only for the purpose of interacting with the Cloud Services as allowed by the CSS. Access to the CSS is subject to this Agreement and any technical and functional information made available to Customer with the CSS. The CSS is provided on an ‘as is’ and ‘when available’ basis and WinMagic has no liability to Customer because of any change, temporary unavailability, suspension or termination of access to the CSS. . When CSS’ are updated, Customer may be required to implement and use the most current version of the CSS. Access credentials may not be used by more than one Authorized User but may be transferred from one Authorized User to another if the original user is no longer using theCSS. Customer shall report to WinMagic any security flaws discovered in the CSS or any actual or suspected unauthorized access to theCSS using Authorized User’s credentials. Where a third party is accessing the CSS without authorization, Customer will cooperate with WinMagic in the enforcement and protection of WinMagic’s rights and Subscriber’s access to such CSS may be suspended until such unauthorized activity is resolved to WinMagic’s satisfaction. As provided or made available to you, the CSS may work in conjunction with open source software. Where applicable, such open source software forms, and is distributed as, a separate and independent software program from the Cloud Services. In all cases, all open source software is subject to the terms and conditions of the applicable open source licenses and notices set out at the following URL: www.winmagic.com/other-licenses-open-source (“Open Source Licenses”) and you agree to the terms and conditions of the applicable Open Source Licenses as they relate to such open source software
4 OBLIGATIONS
4.1 Customer Obligations. The Customer shall (a) cooperate with WinMagic in good faith to enable WinMagic’s provision of the Services including providing WinMagic with timely access to Customer Data and employees and consultants of the Customer as reasonably required by WinMagic to provide the Services; (b) have sole responsibility for the accuracy, quality, completeness, integrity, legality, reliability and appropriateness of Customer Data; (c) comply with all applicable laws; (d) if any Services are to be provided at the Customer’s facilities, provide WinMagic with all necessary access to the Customer’s facilities including access to the Customer’s information technology and telecommunications systems that are necessary for WinMagic to provide the Services; (e) ensure that the Customer’s information technology and telecommunications systems comply with relevant specifications and requirements that may be provided by WinMagic from time to time to enable WinMagic to provide the Services;
(f) use commercially reasonable efforts to prevent any unauthorized access or use of the Cloud Services and promptly notify WinMagic of any unauthorized access or use of the Cloud Services; (g) obtain and maintain all necessary licenses, consents and authorizations to allow WinMagic to provide the Services to the Customer; and (h) be fully liable and responsible for the acts and omissions of Authorized Users and Authorized Users’ compliance with this Agreement.
4.2 Failure to Perform. WinMagic shall not be in breach of this Agreement and shall not be liable to the Customer for failure to perform
WinMagic’s obligations under this Agreement if such failure is caused by (a) the Customer failing to perform any of its obligations under this Agreement; (b) any use by the Customer of a third party website, product or service that is linked to the Cloud Services to transfer information to any such third party; (c) any act, omission or breach of this Agreement by the Customer; or (d) any violation of applicable laws by the Customer.
5 DATA SECURITY
5.1 Protection of the Customer Data. WinMagic shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Customer Data. Customer Data shall be managed, maintained and processed in accordance with the data security schedule found at https://winmagic.com/en/saas-datasecuritystandardsschedule/, which may be updated by WinMagic from time to time (the “Data Security Schedule”) which is incorporated by reference into this Agreement to the extent applicable to the Cloud Services.
6 TERM AND TERMINATION
6.1 Term. This Agreement commences as of the date of commencement of the first Order executed by the Parties and continues until all Orders have expired or been terminated.
6.2 Overholding. In the event the Customer continues to access or use any Cloud Services after the termination or expiry of this Agreement or a related Order without the written agreement of WinMagic (“Overheld Services”), the terms and conditions of this Agreement and the applicable Order shall be deemed to apply to any Overheld Services; provided, however (a) the length of term for any Overheld Services shall be month to month payable in advance on the first day of the month; and (b) the amount charged by WinMagic for any Overheld Services shall be 130% of the Fees then in effect at the time of termination or expiry of the Agreement, Order calculated on a monthly pro-rated basis. WinMagic shall promptly invoice for any Overheld Services.
6.3 Termination. Either Party may terminate this Agreement for cause (a) upon 30 days written notice to the other Party if the other Party breaches any material provision of this Agreement and such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.4 Effect of Termination. Upon termination or expiration of this Agreement (a) WinMagic shall make Customer Data available to the Customer for export or download for 30 days and, following such 30 day period, WinMagic shall have no obligation to maintain or provide any Customer Data and shall delete or destroy copies of all Customer Data in its possession or control, unless prohibited by applicable laws; (b) the Customer shall pay all Fees due and not yet paid; (c) if this Agreement is terminated by WinMagic in accordance with Section 6.3, the Customer shall pay any Fees covering the remainder of the term of all Orders; (d) each Party shall return to the other Party, or at the direction of the other Party destroy, within 30 days all Confidential Information of the other Party; and (e) any rights of a Party to use the intellectual property of the other Party as provided for in this Agreement shall terminate.
7 FEES
7.1 Fees. The Customer shall pay WinMagic all fees (“Fees”) specified in each Order. Unless expressly stated otherwise in an Order
(a) payment obligations are non-cancelable; and (b) Fees paid are non-refundable.
7.2 Invoicing and Payment. Fees shall be invoiced in accordance with the applicable Order. Unless expressly stated otherwise in an Order, the Customer shall pay all invoiced amounts within 30 days of the applicable invoice date.
7.3 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with the purchase of the Services and shall not deduct any amount from the Fees for Taxes. If WinMagic has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 7.3, WinMagic shall invoice the Customer and the Customer shall pay that amount unless the Customer provides WinMagic with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, WinMagic is solely responsible for taxes assessable against it based on its income, property and employees.
8 PROPRIETY RIGHTS
8.1 Reservation of Rights. Other than the rights expressly granted in this Agreement (a) all right, title and interest in the Services and Documentation (including all intellectual property and other proprietary rights in the Services and Documentation) is owned by WinMagic and its third party licensors (as applicable); and (b) nothing in this Agreement shall assign, transfer or convey to the Customer any title, rights or interest to any intellectual property (including in the Services and Documentation). WinMagic reserves all rights not expressly granted to the Customer in this Agreement.
8.2 Customer Data. Subject to the license rights granted in this Agreement, all right, title and interest in the Customer Data (including all intellectual property rights in the Customer Data) is owned by the Customer. The Customer grants to WinMagic an irrevocable, perpetual, non-exclusive, worldwide, fully paid up and royalty-free license to use, reproduce, display, distribute, publish, perform, create derivative works from, process, transmit, provide and store the Customer Data for the purpose of providing, enhancing, developing, diagnosing and correcting the Services.
8.3 Documentation and CSS. WinMagic grants to the Customer a limited, non-transferable, non-exclusive, worldwide, fully paid up and royalty-free license to use and reproduce the Documentation for the Customer’s internal business purposes in connection with the Customer’s access and use of the Services and to use the CSS solely with the Cloud Services.
8.4 Feedback. The Customer grants to WinMagic an irrevocable, perpetual, unlimited, transferable, exclusive, worldwide, fully paid up and royalty-free license to use, distribute, disclose, make and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer relating to the Services.
8.5 Usage Data/statistical data. To deliver, support, develop, test and improve the Services, WinMagic may collect, store, analyze and interpret data elements associated with or provided in the use of the Services and CSSs. WinMagic will own all rights in such data and any algorithm, computational or cumulative results of such data. WinMagic may use such data for any purpose (including, but not limited to, providing the Services, and auditing and improving the Services), and may provide it to third parties or compile it with other data to derive statistical and performance information, provided that it will aggregate and anonymize such data so that Customer or any individual cannot be identified as the source of such data.
9 CONFIDENTIAL INFORMATION
9.1 “Confidential Information” means all confidential or proprietary information of a Party (the “Disclosing Party”) disclosed to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Customer Data, Documentation, the terms and conditions of this Agreement (including all Orders and Fees), business and marketing plans, technology and technical information, application programming interfaces, computer code, techniques, methods of operation, specifications, trade secrets and business processes.
9.2 Treatment of Confidential Information. The Receiving Party shall not use or disclose Confidential Information of the Disclosing Party for any purpose other than to perform its respective obligations under this Agreement. Each Party retains all ownership rights to its Confidential Information. The Receiving Party shall use at least the same level of care to prevent unauthorized use or disclosure of Confidential Information as it uses for its own confidential and proprietary information, but in no event less than a reasonable standard of care. The confidentiality obligations contained in this Section 9 supersede and replace any prior non-disclosure agreement between the Parties regarding the subject matter of this Agreement. The Receiving Party shall only make available Confidential Information to its Subsidiaries, employees and contractors on a need-to-know basis and shall be subject to contractual obligations of confidentiality no less restrictive than the restrictions set out in this Section 9 with respect to the use and disclosure of Confidential Information. The Receiving Party shall be responsible for any unauthorized disclosure of any Confidential Information by its Subsidiaries, employees and contractors.
9.3 Permitted Disclosure. The obligations of confidentiality set out in this Section 9 shall not apply to any Confidential Information that (a) is publicly available when it is received by or becomes known to the Receiving Party or that subsequently becomes publicly available through no fault of the Receiving Party (but only after it becomes publicly available); (b) is established by evidence to have been already known to the Receiving Party at the time of its disclosure to the Receiving Party and is not known by the Receiving Party to be the subject of an obligation of confidence of any kind; (c) is independently developed by the Receiving Party without any use of or reference to the Confidential Information of the Disclosing Party as established by evidence; (d) is received by the Receiving Party in good faith without an obligation of confidence of any kind from a third party who the Receiving Party had no reason to believe was not lawfully in possession of the information free of any obligation of confidence of any kind; or (e) the Receiving Party is required to disclose by applicable laws or in response to an order of a court or other governmental authority; provided, that the Receiving Party provides the Disclosing Party with prompt notice of any such requirement to disclose (to the extent legally permitted) so that the Disclosing Party may seek a protective order or applicable relief.
9.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable harm to the Disclosing Party and that, in the event of such unauthorized disclosure, the Disclosing Party shall be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief.
10 REPRESENTATIONS AND WARRANTIES
10.1 WinMagic. WinMagic represents and warrants that (a) the Services shall function as described in the Documentation in all material respects; (b) it shall use reasonable efforts to scan for Malicious Code; and (c) it shall provide the Services using commercially reasonable care and skill and in accordance with applicable laws.
10.2 Customer. The Customer represents and warrants that (a) it owns all rights, title and interests in, or has a license to, all Customer Data; (b) it has the necessary rights and consents to provide Customer Data to WinMagic; (c) it has the necessary rights to grant the licenses granted by the Customer to WinMagic in this Agreement; (d) Customer Data complies with all applicable license requirements and does not violate any applicable laws.
10.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.
11 LIABILITY
11.1 Indemnity. Each Party (an “Indemnifying Party”) shall (a) defend the other Party (an “Indemnified Party”) from and against any claim, demand, legal action or proceeding made or brought against the Indemnified Party (each an “Indemnity Claim”) by a third party alleging that any infringement, violation or misappropriation of any third party’s intellectual property rights; and (b) indemnify the Indemnified Party for any damages and reasonable legal fees finally awarded against the Indemnified Party by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by the Indemnifying Party, as a result of any Indemnity Claim; provided, however (a) the Indemnified Party promptly gives Indemnifying Party written notice of the Indemnity Claim; (b) the Indemnified Party gives the Indemnifying Party sole control of the defence and settlement of the Indemnity Claim (provided any settlement unconditionally releases the Indemnified Party of all liability); (c) the Indemnified Party provides the Indemnifying Party reasonable assistance to enable the Indemnifying Party to defend and settle the Indemnity Claim; and (d) if the Indemnifying Party is WinMagic (i) the Indemnity Claim is not based on any Customer Data or any modifications to the Services requested by the Customer; and (ii) the Customer uses any non-infringing service provided by WinMagic in accordance with Section 11.2.
11.2 Replacement Services. If any part of the Services becomes, or in the reasonable opinion of WinMagic is likely to become, the subject of a claim of intellectual property infringement as described in Section 11.1, WinMagic may at its own expense (a) modify the Services so that it is no longer infringing; (b) obtain a license to enable the Customer to continue using the Services in accordance with this Agreement; (c) replace the Services with a functionally equivalent service; or (d) terminate the applicable Services if WinMagic issues to the Customer a refund for any pre-paid Fees applicable to the remaining term of the Order. Sections 11.1 and 11.2 state WinMagic’s sole liability, and the Customer’s exclusivity remedy, for any Indemnity Claim for intellectual property infringement relating to the Services.
11.3 No Indirect Damages. In no event shall either Party or its Affiliates and their respective officers, directors, employees and agents be responsible or liable with respect to this Agreement or the Services under any contract, tort, negligence, strict liability or other theory: (a) for any indirect, exemplary, punitive, incidental, special or consequential damages; (b) for loss of business, profits or revenues, failure to realize expected savings or other commercial or economic losses of any kind; or (c) for error or interruption of use or for loss or inaccuracy of corruption of data or cost of procurement of substitute goods, services or technology, in each case whether or not a Party has been advised of the possibility of such damages.
11.4 Cap on Liability. The aggregate cumulative liability of each Party to the other Party for any claims arising under or relating to this Agreement, notwithstanding the form in which any action is brought, whether in contract, tort (including negligence) or otherwise, shall be limited in the aggregate to the total Fees paid or payable by the Customer to WinMagic under this Agreement in the calendar year in which a claim first arose; provided, however the limitations of liability set out in this Section 11.4 shall not apply to limit a Party’s liability for (a) gross negligence or willful misconduct, (b) payment of Fees; or (c) breach of 11.1.
12 DISPUTE RESOLUTION
12.1 Dispute. If any dispute, disagreement, controversy, claim or allegation arises between the Parties relating to this Agreement (a “Dispute”), the Parties shall in good faith attempt to promptly and amicably resolve the Dispute in accordance with the following process:
12.1.1 The Party initiating the Dispute shall provide notice to the other Party of the existence of the Dispute, which notice shall (a) be provided in accordance with Section 13.1 of this Agreement; and (b) include reasonably detailed information containing the nature of the Dispute.
12.1.2 Each Party shall designate a relationship manger (the “Relationship Managers”) who shall meet to attempt to resolve the Dispute.
12.1.3 If the Relationship Managers are unable to resolve the Dispute within 14 days following the date the notice of Dispute was given (or such other date as mutually agreed upon by the Parties in writing), the Dispute shall be escalated to a senior corporate executive, officer or representative of each Party (the “Senior Executives”) to attempt to resolve the Dispute.
12.1.4 If the Senior Executives are unable to resolve the dispute within 14 days following the date the Dispute was escalated to the Senior Executives, then each Party may take whatever steps are necessary to protect its interests. Any Dispute that is submitted to the process described in this Section 12 shall not be the subject of litigation or other formal proceeding between the Parties before being considered by the Senior Executives in accordance with this Section 12; provided, however that either Party may seek injunctive or equitable relief without complying with the process described in this Section 12.
13 GENERAL
13.1 Contracting Entity and Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.
13.2 Notice. All notices given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier to occur of actual receipt or (a) personal delivery to the Party to be notified; (b) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day; (c) five days after having been sent by registered or certified mail, return receipt requested and postage prepaid; or (d) one business day after deposit with a nationally recognized overnight courier, freight prepaid and specifying next business day delivery, with written verification of receipt. All notices shall be sent to the Customer at their mailing address or email address set forth in the applicable Order. All notices shall be sent to WinMagic at (i) the email address set forth in the applicable Order; (ii) ; and (c) legal@WinMagic.com. Each Party consents to the delivery of electronic notices under this Agreement.
13.3 Survival. The provisions of Sections 3.2, 6.2, 7, 8.4, 9, 11, 12, 13.11, Error! Reference source not found.2 and 13.3, and any other terms in this Agreement which expressly state that such terms shall survive or are necessary to survive to give effect to the surviving terms, shall survive the termination or expiration of this Agreement.
13.4 Third Parties. Except as otherwise expressly stated in this Agreement, nothing contained in this Agreement is intended to confer upon any person who is not a Party any rights, benefits or remedies of any kind or character whatsoever, and no such person shall be deemed a third party beneficiary under this Agreement.
13.5 Equitable Relief. Nothing in this Agreement shall, or shall be construed to, delay, limit or preclude a Party from seeking equitable relief from a court of competent jurisdiction at any time.
13.6 Exclusivity. The commercial relationship under this Agreement is non-exclusive. Nothing in the Agreement shall prevent WinMagic from providing any services to any other person or the Customer from purchasing any services from another person.
13.7 Further Assurance. The Parties agree from time to time to execute such further agreements or other documents, and do all such other acts and things as may be necessary or desirable, to give effect to the terms of this Agreement.
13.8 Entire Agreement and Paramountcy. This Agreement constitutes the entire agreement between the Parties regarding the subject matter of this Agreement and supersedes all prior agreements, proposals, understandings, letters of intent, negotiations and discussions between the Parties, whether oral or written, regarding the subject matter of this Agreement. In the event of any conflict or inconstancy among this Agreement and any Order, the terms of this Agreement shall prevail to the extent of the conflict or inconsistency, unless otherwise expressly stated in an Order.
13.9 Export Compliance. The Services are subject to all applicable export control laws and regulations including, without limitation, those of the United States government. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13.10 Force Majeure. Neither Party shall be in breach of this Agreement nor liable for failure to perform its obligations under this Agreement if such failure is due to causes beyond a Party’s reasonable control including acts of God, acts or omissions of the other Party or a third party, third party product or service failures, Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power, surges or outages, epidemics, flood, earthquakes, riot or war. Each Party shall use commercially reasonable efforts to provide the other Party with notice of any such events.
13.11 Independent Contractor. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party shall be solely responsible for payment of all compensation, benefits, premiums and taxes required to be paid on behalf of its employees and contractors.
13.12 Amendments and Waiver. No amendment or waiver of any provision of this Agreement shall be binding on any Party unless consented to in writing by such Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provisions, nor shall any waiver constitute a continuing waiver, unless otherwise expressly stated in a waiver.
13.13 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to applicable laws, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by applicable laws and the remaining provisions shall remain in effect.
13.14 Assignment. This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however either Party may assign this contract: (a) to an affiliate; (b) as part of a bona fide corporate reorganization; or (c) in connection with a sale of its business, a sale of all or substantially all of its assets, a merger, a change of control transaction, a business combination or other such similar transaction, whether by way of contract, operation of law or otherwise.
13.15 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and both of which taken together shall constitute one and the same agreement, and each Party may deliver such executed counterpart electronically to the other Party.
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