Services Agreement

Last Updated December 23, 2020

This Nashi Service Agreement (this “Agreement”) is entered into by and between Nashi, Inc. (“Nashi”) and the entity or person placing an order for or accessing the Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below and any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

Modifications: You acknowledge and agree that Nashi may modify the terms and conditions of this Agreement in accordance with Section 12 (Modifications).

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

1. Nashi Services

Nashi offers a hosted web application with ability to manage company seating assignments along with additional features to help with workplace safety (the “Services”).

1.1. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”) unless otherwise specified in Section 2 (Service Plans and Beta Releases). Customer shall purchase and Nashi shall provide the Services as specified in the applicable Order Form. During the Subscription Term and subject to the provisions of this Agreement, Nashi grants to Customer a limited, non-sublicensable, non-transferable, nonexclusive license to access and use the Services in accordance with the documentation supplied by Nashi, solely for Customer’s internal business purposes.

1.2. Access to the Services. Access to the Services is limited to Customer’s employees and contractors acting for the sole benefit of Customer (“Permitted Users”). Customer and its Permitted Users may need to register for a Nashi account in order to access or use the Services. Account registration information must be accurate, current and complete, and will be governed by Nashi’s Privacy Policy (available at https://nashi.io/privacy). Customer is responsible for any use of the Services by its Permitted Users and their compliance with this Agreement. Customer shall keep confidential its user IDs and passwords for the Services and remain responsible for any actions taken through its accounts.

1.3. Use Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to develop a similar or competing product or service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Nashi); (d) copy, modify or create any derivative work of the Services; or (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services).

2. Service Plans and Beta Releases

2.1. Services Plans. Nashi makes available the Services through paid plans (“Paid Plans”), a free plan (“Free Plan”) and trial plans (“Trial Plans”). Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Services. Customer’s permitted scope of use (such as features available other usage limits) may depend on the plan that Customer selects and may be specified on the applicable Order Form.

2.2. Paid Plans. Paid Plans are provided for the Subscription Term designated on the applicable Order Form and, unless otherwise specified on the Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).

2.3. Free Plans and Trial Plans

a) Free Plans. Under Free Plans, Customer may use the Services, and the Subscription Term is ongoing until either (a) Nashi or Customer terminate this Agreement or (b) Nashi ceases to offer the Free Plan, whichever occurs first.

b) Trial Plans. Under Trial Plans, Customer may use the Services solely to determine whether to purchase a Paid Plan, and the Subscription Term will be thirty (30) days unless otherwise specified in the Order Form. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Subscription Term, then Customer’s access to the Services may be limited or suspended (to be determined at Nashi’s sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.

c) Special Terms. Free Plans and Trial Plans may not include all features or functionality offered as part of Paid Plans, and Nashi reserves the right to add or subtract any features or functionality at any time for such plans. Nashi has the right to suspend or terminate a Free Plan or Trial Plan at any time for any reason.

2.4. Beta Releases. Customer may receive access to a Service (or Service features) as an alpha, beta or early access offering (“Beta Releases”). Nashi identifies all Beta Releases as such and any usage by Customer is optional. Use of a Beta Release is permitted only for Customer’s internal evaluation during the period designated by Nashi (or if not designated, 30 days) and may be subject to additional terms provided by Nashi and agreed by Customer. Nashi may suspend or terminate Customer’s access to Beta Releases at any time for any reason. Beta Releases may be inoperable, incomplete or include features that Nashi may never release, and their features and performance information are Nashi’s Confidential Information. Customer agrees to provide Nashi reports from time to time (as requested by Nashi) describing: (1) the portions of the Services used and any related technology and/or software used, (2) the nature, extent or amount of use, (3) the errors or difficulties discovered, and (4) the characteristic conditions and symptoms of those errors and difficulties so that Nashi may recreate the errors and difficulties within such Beta Releases. In addition, Customer will promptly notify Nashi of the discovery of any material error or bug. Notwithstanding anything else in this Agreement, Nashi’s liability for Beta Releases will not exceed US$50.

3. Security

Nashi agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services or Customer Data. However, Nashi shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Nashi’s control.

4. Ownership

4.1. Customer Data. For purposes of this Agreement, “Customer Data” means any data that Customer submits to the Services. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Nashi. Subject to the terms of this Agreement, Customer hereby grants to Nashi a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer during the Subscription Term.

a) Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Nashi that (1) Customer will comply with all applicable laws in its use of the Services and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any applicable laws or regulations, or (iii) any terms of service, privacy policies or other agreement.

b) California Consumer Privacy Act. To the extent Customer is a Business (as defined under the California Consumer Privacy Act (“CCPA”)) and Nashi processes information that relates to or could be associated with a California resident or household (“Personal Information”) in the course of providing the Services, Nashi shall not (1) retain, use, or disclose such Personal Information other than as provided for in the Agreement, as needed to perform the Services, to build or improve the quality of the Services, to detect security incidents, to protect against fraudulent or illegal activity, to employ subcontractors that qualify as Service Providers, or as otherwise permitted by the CCPA; or (2) sell such Personal Information. Customer represents and warrants that it will only provide or make Personal Information available to Nashi in compliance with the CCPA. Notwithstanding anything else in this Agreement, Customer agrees that Nashi, its affiliates, and each of their directors, officers, employees, agents, representatives, successors and assigns will not be liable under the Agreement for any claim arising from any action or omission by Nashi that resulted from the Customer’s instructions or from Customer’s failure to comply with its obligations under the CCPA.

c) Performance Metrics. Customer further agrees that Nashi has the right to aggregate, collect and analyze data and other information relating to the performance of the Services and shall be free (during and after the term hereof) to (i) use such data and other information to improve Nashi’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

4.2. Nashi Technology. agrees that Nashi or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Services or any Nashi technology are granted to Customer.

4.3. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Nashi product or service to Nashi (“Feedback”). Nashi may freely use or exploit Feedback in connection with any of its products or services.”).

5. Fees & Payment

5.1. Fees and Payment. All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then Customer will pay all fees at the end of the month, or, if Nashi chooses to bill through an invoice, within thirty (30) days of receiving the invoice. Except as expressly set forth in Section 12.1 (Modifications to this Agreement), all fees are non-refundable. Nashi reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

5.2. Taxes. Nashi’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that Nashi is solely responsible for taxes assessable against Nashi based on Nashi’s net income, property, and employees. If any deduction or withholding is required by law, Customer shall notify Nashi and shall pay Nashi any additional amounts necessary to ensure that the net amount that Nashi receives, after any deduction and withholding, equals the amount Nashi would have received if no deduction or withholding had been required.

6. Term and Termination

6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section limits Nashi’s right to terminate or suspend any Free Plan or Trial Plan as set forth in Section 2.3 (Free Plans and Trial Plans).

6.3. Suspension of Services. Without limiting Nashi’s termination or other rights hereunder, Nashi reserves the right to suspend Customer’s access to the Services (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 1.2 (Access to the Services), 1.3 (Use Restrictions); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services. When practicable, Nashi will use reasonable efforts to provide Customer with advance notice of the suspension (email sufficing). Unless this Agreement has been terminated, Nashi will cooperate to restore Customer’s access to the Services promptly after Nashi verifies that Customer has resolved the issue requiring suspension.

6.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related Nashi technology), delete (or, at Nashi’s request, return) any and all copies of any related documentation, any Nashi passwords or access codes and any other Nashi Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that Nashi may delete any such data as may have been stored by Nashi at any time. Upon any expiration or termination of this Agreement, Nashi shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Nashi may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards in Section 3 (Security). Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

6.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.3 (Use Restrictions), the disclaimers in Section 2.4 (Beta Releases), 4 (Ownership), 5.1 (Fees and Payment), 6 (Term and Termination), 7 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), [9 (Indemnification)], 10 (Confidential Information), 12 (Modifications) and 13 (General Terms).

7. Warranty Disclaimer

THE SERVICES AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER NASHI NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NASHI DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES NASHI WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR TAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. NASHI SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF NASHI. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8. Limitation of Remedies and Damages

8.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2. Liability Cap. NASHI’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO NASHI DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.

8.3. Excluded Claims. "Excluded Claims” means (a) any claim arising from: (i) Customer’s breach of Sections 1.3 (Use Restrictions); (ii) either party’s breach of Section 10 (Confidential Information); or (b) any amounts payable to third parties pursuant to either party’s indemnification obligations under Section 9 (Indemnification).

9. Indemnification

9.1 Indemnity by Nashi. Nashi will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Nashi) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Nashi of such Claim, (b) Nashi will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Nashi may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Nashi in connection therewith. If the use of the Services by Customer has become, or in Nashi’ opinion is likely to become, the subject of any claim of infringement, Nashi may at its option and expense (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Nashi will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Services by Customer not in accordance with this Agreement; (C) modification of the Services by any party other than Nashi without Nashi’ express consent; (D) Customer Data or (E) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Nashi’ sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

9.2 Indemnification by Customer. Customer will defend Nashi against any Claim made or brought against Nashi by a third party arising out of the Excluded Claims, and Customer will indemnify Nashi for any damages finally awarded against (or any approved settlement) Nashi in connection with any such Claim; provided that (a) Nashi will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Nashi’ prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Nashi of all liability) and (c) Nashi reasonably cooperates with Customer in connection therewith.

10. Confidential Information

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party constitute the confidential property of the Disclosing Party, ("Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Nashi technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Nashi without any marking or further designation. Any Customer Data shall be deemed Confidential Information of Customer. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

11. Publicity

Customer agrees that Nashi may refer to Customer’s name and trademarks in Nashi’s marketing materials and website, identifying Customer as a customer of Nashi; however, Nashi will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

12. Modifications

12.1. Modifications to this Agreement. Nashi may modify the terms and conditions of this Agreement (which may include changes to Services pricing and plans) from time to time with notice to Customer in accordance with Section 13.4 (Notice).

a) Free Plans and Trial Plans. If Customer has a Free Plan or a Trial Plan, any modifications will become effective immediately, and if Customer objects to the modifications, its exclusive remedy is to terminate this Agreement and cease using the Services.

b) Paid Plans. If Customer has a Paid Plan, the following terms apply: Unless a shorter period is specified by Nashi (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order Form. If Nashi specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or order and Customer notifies Nashi in writing of its objection to the modifications within thirty (30) days after the date of such notice, Nashi (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

13. General Terms

13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Nashi may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Nashi’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

13.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

13.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.

13.4. Notice. Any notice or communication required or permitted under this Agreement shall be in writing. If to Nashi, notices must be provided to the address set forth below (Nashi Contact Information) and shall be deemed to have been received (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. If to Customer, Nashi may provide notice to Customer’s email address on file or through the Services. Any email notices shall be deemed to have been received upon delivery. Either party may update its address with notice to the other party.

13.5. Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

13.6. Entire Agreement; Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Nashi may make changes to the Services, and Nashi will update the applicable Documentation accordingly.

13.7. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

13.8. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

13.9. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

13.10. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.