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PuzzleData Cloud Services Agreement

This Cloud Services Agreement, including all integrated exhibits and Order Forms referencing this Agreement (collectively, the “Agreement”) is entered into by and between PuzzleData (the “Supplier”) and the recipient of such services (the “Customer”). The accessing and use by the Customer of such products and/or services indicates the acceptance by the Customer of these terms and conditions. Supplier and Customer are each a “Party” and together the “Parties”.
Services TERMS
ProDiscovery Cloud Services Description (Standard Plan)
ProDiscovery Cloud Services Description (Advanced Plan)
ProDiscovery Cloud Services Description (Enterprise Plan)
1. ACCESS LICENCE AND RESTRICTIONS
1.1 Access to Cloud Services: Subject to the terms and conditions set forth in this Agreement and in exchange for payment of the cloud services fees, the Supplier grants the Customer a non- exclusive, non-transferable, non-sub-licenseable right to access and use the Cloud Services (hereinafter “Cloud Services”) identified in any Cloud Services Attachment (hereinafter “Cloud Services Attachment”) in accordance with the Documentation solely for its internal business purposes as contemplated by this Agreement for the duration of the Cloud Services Term. “Documentation” means the Cloud Services Attachment, user manuals, and operating instructions generally provided with the Cloud Services to a customer. The Cloud Services Attachment describes the Supplier’s management, maintenance and service level commitment for the Cloud Services.

1.2 Provision of Cloud Services: The Cloud Services will be solely provided by the Cloud Services Delivery Entity referred to in the Cloud Services Attachment and the Customer acknowledges and agrees to the appointment by the Supplier of such Cloud Services Delivery Entity for such purposes under this Agreement. The Cloud Services Delivery Entity will be the only entity of Supplier accessing Customer Data, if applicable, as further defined below.

1.3 Term and Renewal Term: The term of this agreement for the provision of Cloud Services is fixed for the duration of the Cloud Services Term set out in any relevant Cloud Services Attachment and thereafter renews on the basis set out in the Cloud Service Renewal Terms set out in any relevant Cloud Services Attachment. The Supplier will delete the Customer’s Account (as defined below) 30 days after the expiry or termination of this Agreement or any Cloud Services Attachment.

1.4 Restrictions: The licence set forth in this Agreement is granted subject to the following restrictions:

(a) the Customer will not (other than for access to the Cloud Services via plug-ins or fat clients to the extent such installation (not download) is supported) receive a copy of any software or platform programs listed in the Cloud Services Attachment (“Software”), will not be permitted any access to the programming or source code, or have the right to install the Software (or any part thereof) locally in any system of the Customer, contractor or agent;

(b) Customer shall not:

  • copy, license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Cloud Services available to any third party, other than as expressly permitted by this Agreement and by international export laws and regulations;
  • disassemble, reverse engineer, reverse compile, translate, modify, adapt, alter, copy or create derivative works from any products or services provided with the Cloud Services except to the extent permitted by applicable law;
  • interfere with or disrupt the integrity or performance of the Cloud Services or the data contained therein;
  • attempt to gain unauthorized access to the Cloud Services or their related systems or networks;
  • disseminate performance-related information relating to the Cloud Services or the Software;
  • store or process any personal data relating to an identified or identifiable natural person, such as a person’s racial or ethnic origin, political opinions, religious or philosophical convictions, union membership, and health.
  • use the configuration and reporting capabilities of the Cloud Services for any other purposes besides those set forth in this Agreement; or
  • use the software or granted services and related documentation/technology or other related systems for any military end use or for the development, manufacturing, usage, operations, maintenance, stock piling, locating, identification or proliferation of chemical, biological or nuclear weapons or carriers/missiles for such weapons.
  • otherwise utilize the Cloud Services in any manner, except as expressly permitted under this Agreement.

    • (c) access to the Cloud Services cannot be shared or used by more than one individual (unless it is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use such licence);
    (d) the Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Cloud Services;
    (e) the Customer is responsible for all user access to and use of the Cloud Services and shall abide by all applicable laws and regulations including those regulations applicable to data privacy and data security regulations; and
    (f) the Customer shall obtain at its sole expense any rights and consents from third parties necessary for the Supplier and its subcontractors to perform the Cloud Services under this Agreement.

1.5 Authorized Users: “Users” of the Cloud Services shall mean employees or contractors of the Customer who are authorized to access the Cloud Services using a user identifier and password. The Customer shall not make the Cloud Services available to any person or entity other than Users and shall remain liable to the Supplier for all acts and omissions by Users as though such acts or omissions were those of the Customer itself.

1.6 Reservation of Rights: Subject only to the rights expressly granted to the Customer under this Agreement, all rights, title and interest in and to the Cloud Services will remain with and belong exclusively to the Supplier.

2. CUSTOMER INFORMATION
2.1 Customer Account: In order to access and use the Cloud Services, the Customer will need to register and create an account (the “Account”). By creating an Account the Customer represents it is of legal standing to form a binding contract and is not barred from receiving services under any applicable jurisdiction. To create an Account the Customer is required to provide certain personal information about the Account registrant and create a username and password. The Customer agrees to provide accurate, current and complete information. The Supplier reserves the right to suspend or terminate any Account if:

(a) any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading; or
(b) such Account is inactive for more than 30 days, unless the Supplier and the Customer have mutually discussed and agreed upon an alternative provision.

The Customer is responsible for maintaining the confidentiality of its password and Account and agrees to notify the Supplier if its password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have become compromised. The Customer is responsible for all activities that occur under its Account.

2.2 Ownership: In order for the Cloud Services to perform the function for which they were designed, the Cloud Services will gather and transmit certain technical information and Account information. Customer shall own all content, information, materials, and intellectual property provided in its unaltered form by Customer in connection with Customer’s use of and access to the Cloud Services (“Customer Data”).
Supplier owns all intellectual property rights in and to the Cloud Services, Documentation and all related materials and derivative works thereof. There is no transfer or assignment by Supplier of any ownership right and Supplier reserves all rights not expressly granted under this Agreement.

2.3 Customer Responsibility for Customer Data: The Customer is solely responsible for all Customer Data provided to the Supplier, or uploaded to, stored in or transmitted through the Cloud Services and the use of the Cloud Services by the Customer and its Users. The Supplier takes no responsibility and assumes no liability for any Customer Data posted, transmitted through, or uploaded to the Cloud Services by the Customer or any third party, or for any loss or damage thereto, nor is the Supplier liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that the Customer and/or its Users may encounter. The Customer is responsible for securing any privacy-related rights and permissions as may be required by local law or by the Customer’s internal policies. The Supplier will perform Data Backups, Recovery Point Objectives and Recovery Time Objectives each as described in the Cloud Services Attachment. If the Customer requires further or additional backup copies of Customer Data posted or stored on the Cloud Services these are the responsibility of the Customer.

2.4 Supplier Access: The Supplier will not use or access the Customer Data associated with the use of and access to the Cloud Services by the Customer in the ordinary course of the provision of the Cloud Services and has policies and data protection controls in place which prohibit cloud operations staff from accessing tenant data unless explicitly authorised and permitted by the Customer tenant administrator. Should the Supplier require such access it may do so only with the prior consent of the Customer (not to be unreasonably withheld or delayed in any of the circumstances referred to below). Customer hereby grants to the Supplier a worldwide, irrevocable, non-transferable, non-assignable (except as permitted under this Agreement), sub- licenseable, non-exclusive licence to access, retrieve, store, copy, create derivative works of, display, distribute, transmit and otherwise use the Customer Data associated with the use of and access to the Cloud Services by the Customer:

(a) in connection with maintaining, providing and/or making available the Cloud Services;
(b) as reasonably required in order to cooperate with legitimate governmental requests, subpoenas or court orders;
(c) as otherwise required in order to protect the Supplier’s systems and the Customer; and
(d) otherwise for the purposes of ensuring the integrity and operation of the Supplier’s business and systems.

3. TERMS OF SERVICE
3.1 Service Level: The Supplier shall use commercially reasonable efforts to make the Cloud Services accessible to the Customer, subject to the availability of third party infrastructure, required and emergency maintenance, availability of third party networks and communications facilities and force majeure events. The Cloud Services are hosted on a shared third-party infrastructure environment as set forth in the Cloud Services Attachment.

3.2 Privacy: The Supplier will provide the Cloud Services in accordance with its then current Privacy Policy which is incorporated herein by this reference. Supplier reserves the right to change its Privacy Policy from time to time by posting a new version at [Insert link]. Customer agrees to and accepts any modified terms by continuing to use the Cloud Services after such changes are posted and effective.

3.3 Security: The Supplier will employ commercially reasonable security measures in providing the Cloud Services. In addition, the Supplier agrees to make reasonable commercial efforts to safeguard the personally identifiable information associated with the Customer Data from unauthorized access or use, and to store Customer Data in facilities that are deemed to be reasonably secure based on generally recognized industry practices and that have in place reasonable physical, structural and information security safeguards against the unauthorized access or use of the Customer Data. The Supplier’s security processes are reviewed on a regular basis by the Supplier’s Security Council, led by the Corporate Security Officer.

4. DATA PROTECTION
4.1 Data Protection and Privacy: Customer and Supplier acknowledge that as between the Customer and Supplier these provisions will apply to the Customer as the Data Controller and (to the extent that each acts in such capacity) Supplier as the Data Processor of any Customer Data. Supplier will not perform Customer’s management or regulatory obligations and is not responsible for determining the requirements of laws applicable to Customer’s business, including those relating to use of Customer Data with the Cloud Services. The terms “Data Controller”, “Data Processor”, “Personal Data”, and “processing”, have the following definitions:

    (a) “Data Controller” means a person who, either alone or with others, controls the contents and use of personal data.
    (b) “Data Processor” means a person who processes personal data on behalf of a data controller but does not include an employee of a data controller who processes such data in the course of his employment.
    (c) “Processing” of or in relation to information or data, means performing any operation or set of operations on the information or data, whether or not by automatic means, including—

    • obtaining, recording or keeping the information or data,
    • collecting, organising, storing, altering or adapting the information or data,
    • retrieving, consulting or using the information or data,
    • disclosing the information or data by transmitting, disseminating or otherwise making it available, or
    • aligning, combining, blocking, erasing or destroying the information or data.

4.2 Processing in accordance with laws: Supplier shall process the Personal Data only to the extent and in such a manner as is necessary for the purposes of this Agreement, in accordance with Customer’s instructions and shall not process the Personal Data for any other purpose. The Customer shall be obliged to ensure that, based on the intended use by the Customer of the Cloud Services, the Customer’s use of the Cloud Services as provided by the Supplier will be and remain compliant with any obligations under applicable legislation.

4.3 Controlling in accordance with laws: The Cloud Services are not designed to comply with any particular law or regulations. Customer will control and allow access to the Personal Data in its capacity as Data Controller and is solely responsible for complying with laws, rules, and regulations that may be applicable to Customer Data and Customer’s use of the Cloud Services. If Customer uses the Cloud Services from outside of the state where the chosen Data Centre location is situated, or by sanctioned entities/users Customer is solely responsible for compliance with all applicable laws, including without limitation export and import laws and regulations of such other countries, associated embargo and sanctions regulations and prohibitions on export for certain end uses or by any prohibited end users. Any relocation of Customer Data contrary to applicable law is prohibited.

4.4 Handling Personal Data: If Supplier receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data, it shall promptly notify Customer and it shall provide Customer with full co-operation and assistance in relation to any such complaint, notice or communication.

4.5 Access to Personal Data: Supplier shall ensure that access by its employees to the Personal Data is limited to those employees who need access to the Personal Data to meet the Supplier’s obligations under this Agreement and that they are informed of the confidential nature of the Personal Data and have undertaken training in the laws relating to handling personal data.

5. PAYMENT
5.1 Payment: All payments shall be due and payable within ten (10) days of the date of invoice.

5.2 Taxes: All payments under this Agreement shall be made without recoupment or set-off and are exclusive of taxes and duties. Customer agrees to bear and be responsible for the payment of all taxes and duties including, but not limited to, all sales, use, rental, receipt, personal property and other taxes (but excluding taxes based upon Supplier’s income), which may be levied or assessed in connection with this Agreement.

5.3 Interest: If any payment due under this Agreement is not paid in accordance with the terms of this Agreement, then it shall accrue interest at the maximum legal rate.

6. CONFIDENTIALITY
6.1 Confidential Information: The Parties acknowledge that each Party will have access to intellectual property or other confidential information of the other party or third parties in respect of which the disclosing party has a duty of confidentiality which, for the purposes of this Agreement, is limited to the Cloud Services, Customer Data, and Personal Data the terms and pricing of this Agreement and any other information clearly identified as being “Confidential” (“Confidential Information”). Both Parties agree that Confidential Information disclosed is proprietary and shall remain the sole property of the disclosing Party or such third party.

6.2 Confidentiality: Each Party agrees:
(a) to use Confidential Information only for the purposes described herein; and
(b) not to reproduce Confidential Information and to hold it in confidence and protect it from dissemination to, and use by, any third party; and
(c) not to create any derivative work from Confidential Information; and
(d) to restrict access to the Confidential Information to its personnel, agents, and/or consultants, who need to have access to such Confidential Information and who have been advised of and have agreed in writing to treat such Confidential Information in accordance with this Agreement; and
(e) to return or, at the disclosing party’s discretion, destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.

6.3 Exclusions: The restrictions shall not apply to Confidential Information that:
(a) is publicly available or in the public domain at the time disclosed;
(b) is or becomes publicly available or enters the public domain through no fault of the recipient;
(c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto;
(d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure;
(e) is independently developed by the recipient; or
(f) is approved for release or disclosure by the disclosing Party without restriction.

6.4 Compliance with law permitted: Each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, or to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
If the recipient is required by law or valid legal order to disclose Confidential Information, the recipient will, unless prohibited by law, give reasonable notice of such demand to allow the disclosing Party to seek a protective order or other remedy.

7. WARRANTIES
7.1 Supplier Warranties: The Supplier warrants that:
(a) the Cloud Services will not contain any computer code that:

  • has been deliberately designed by or on behalf of the Supplier to disrupt, disable, harm, modify, delete or otherwise impede in any manner, the operation of the Cloud Services or any of the Customer’s software, firmware, hardware, computer systems or networks (“the Customer’s Systems”), such devices sometimes referred to as “viruses” or “worms”;
  • has been deliberately designed by or on behalf of the Supplier to access the Customer’s Systems to cause disablement or impairment (sometimes referred to as “trap doors”, “access codes” or “back door” devices).

    • (b) any Cloud Services delivered to the Customer will have been virus checked by the Supplier prior to the provision of the same to the Customer in accordance with the Supplier’s then current standard virus checking procedures;
    (c) the Cloud Services, when properly used, will perform substantially in accordance with the Documentation.

    THE SUPPLIER DOES NOT REPRESENT OR WARRANT THAT:

  • THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA;
  • ANY STORED DATA OR UPLOADED DATA WILL BE OR REMAIN ACCURATE OR RELIABLE;
  • THE RESULTS OBTAINED BY USING THE SERVICE ARE ACCURATE, COMPLETE OR USEFUL;
  • THE SERVICE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR OR END USER’S REQUIREMENTS OR EXPECTATIONS;
  • ERRORS OR DEFECTS WILL BE CORRECTED;
  • ANY SOLUTION CREATED BY OR FOR YOU USING OR BASED UPON THE SERVICE OR THE SERVICE AS INCORPORATED INTO SUCH SOLUTION SHALL FUNCTION IN ANY PARTICULAR MANNER; OR
  • THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

    • Supplier does not and cannot control or warrant the flow of data to or from Supplier’s or Customer’s network and other portions of the internet. THE WARRANTIES IN THIS CLAUSE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

    7.2 Customer Warranties: The Customer warrants that it has the full right and power to enter into and perform this Agreement without the consent of, or any notice to, any third party.

    8. IPR INDEMNITY

    8.1 Indemnity: Supplier shall indemnify, defend, and hold Customer harmless from any action brought by a third-party against Customer to the extent that it is proximately caused by an allegation that the Cloud Services provided under this Agreement have infringed an intellectual property right or trade secret registered in the country of Supplier´s residence, and pay those damages or costs related to the settlement of such action or finally awarded against Customer in such action, including but not limited to reasonable attorneys’ fees.

    8.2 Exclusions: Supplier shall have no liability under this Agreement with respect to any claim based upon:
    (a) Cloud Services that have been modified by anyone other than Supplier;
    (b) use of other than the then-current release of any fat clients or plug-ins provided to Customer for the purposes of accessing and using the Cloud Services, if the infringement could have been avoided by use of the then-current release and such current release has been made available to Customer;
    (c) use of the Cloud Services in conjunction with Customer Data where use with such data gave rise to the infringement claim;
    (d) use of the Cloud Services with other software or hardware, where use with such other software or hardware gave rise to the infringement claim;
    (e) use of any Cloud Services in a manner inconsistent with its Documentation;
    (f) open source software included within the Cloud Services; and/or
    (g) use of any Cloud Services which use breaches this Agreement.

    8.3 Remedy: If Supplier determines that the Cloud Services are or are likely to be the subject of a claim of infringement, Supplier shall have the right:
    (a) to replace the Cloud Services with non-infringing service that have substantially equivalent functionality;
    (b) to modify the Cloud Services so as to cause the Cloud Services to be free of infringement;
    (c) to procure, at no additional cost to Customer, the right to continue to use the Cloud Services; or
    (d) to terminate the licence to use the Cloud Services and refund to Customer the pro-rated portion of the applicable prepaid but unused Cloud Services Fees).

    THE PROVISIONS OF THIS CLAUSE STATE THE EXCLUSIVE LIABILITY OF THE SUPPLIER AND THE EXCLUSIVE REMEDY OF THE CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET MISAPPROPRIATION OR INFRINGEMENT BY THE CLOUD SERVICES, ANY PART THEREOF, AND ANY MATERIAL OR SERVICES PROVIDED HEREUNDER, AND ARE IN LIEU OF ALL OTHER REMEDIES, LIABILITIES, AND OBLIGATIONS.

    8.4 Customer Indemnity: Customer shall indemnify, defend, and hold the Supplier harmless from any action brought by a third-party against the Supplier to the extent that it is proximately caused by an allegation that:
    (a) any access to or use of Customer Data with the Cloud Services; or
    (b) modification or use of the Cloud Services with the Customer’s applications;

    have infringed any intellectual property right or trade secret and pay those damages or costs related to the settlement of such action or finally awarded against the Supplier in such action, including but not limited to reasonable attorneys’ fees.

    9. LIMITATION OF LIABILITY
    9.1 Limitation of Liability: IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL LOSS OR DAMAGES IN CONNECTION WITH ANY CLAIM THAT ARISES FROM OR RELATES IN ANY WAY TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION ALLEGED, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY OF ANY KIND. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS CLAUSE ARE INDEPENDENT OF EACH EXCLUSIVE OR LIMITED REMEDY SET FORTH IN THIS AGREEMENT. EXCEPT IN THE EVENT OF DEATH OR PERSONAL INJURY OF A PERSON NEGLIGENTLY CAUSED BY SUPPLIER, IN NO EVENT SHALL THE LIABILITY OF SUPPLIER UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE CLOUD SERVICES FEES PAID TO SUPPLIER BY CUSTOMER HEREUNDER FOR THE CLOUD SERVICES TO WHICH CUSTOMER’S CLAIM RELATES. CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS SET OUT IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SUPPLIER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
    10. USAGE LIMITS
    10.1 Usage Limits: Customer will ensure that its usage of the Cloud Services does not exceed the usage terms set forth in this Agreement and will be liable for any excess usage at Supplier’s then current rates during the period in which usages exceeds the licensed amount.
    11. BREACH
    11.1 Breach: Either Party may terminate this Agreement with immediate effect by written notice, if the other Party commits a material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within thirty (30) days of receipt of a notice of default from the other party, specifying the breach and requiring its remedy. Notwithstanding the foregoing, in the case of breach SAresulting from non-payment of amounts due hereunder, the party in breach will have ten (10) days after receiving written notice to make full payment.
    12. GENERAL
    12.1 Export Control: Customer may not download, get and/or provide access to, or otherwise export or re-export any underlying software or service, technology or other information from the Cloud Services except as stated explicitly in this Agreement and in full compliance with all applicable national and international laws and regulations. Customer agrees to indemnify and hold harmless and defend Supplier against any and all liability arising from or relating to Customer’s breach of this Clause. Supplier reserves the right not to execute affected parts of, or the entire Agreement, in case any national or international export regulations or foreign trade legislation, or any target country/customer/usage restrictions implied by embargoes or other sanctions prohibit the provision of export controlled goods (Dual–Use items) and Cloud Services to be granted to the Customer under this Agreement. Supplier will inform the Customer whether a related official export approval by national or international export control authorities is required and may postpone the provision of affected Cloud Services until all such required approvals have been granted. In the event of any change of related export classifications or requirements the Supplier may postpone or suspend (as the case may be) the provision of affected Cloud Services until all such required approvals have been granted and, in the event that such approvals are not granted, terminate the provision of the relevant Cloud Services. The provision of agreed goods or services not restricted by the above mentioned export prohibitions will remain unaffected by this clause.

    12.2 Anti-Corruption: The parties recognize and agree that they will comply with laws, regulations, rules and requirements against bribery, money laundering, and anti-corruption and they have in place and will maintain policies and procedures in order to ensure compliance with such laws, regulations, rules and requirements.

    12.3 Force Majeure: If the performance of this Agreement or any obligation under this Agreement, except for the making of payments, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other Act of God or casualty or accident, or strikes or labour disputes affecting third-party vendors, inability to procure or obtain delivery of parts, supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirements of any governmental agency, denial of service attacks, cybercrimes or malware caused by a third party, failure of utilities or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will take all reasonable steps to avoid or remove such cause of non-performance and will resume performance hereunder with dispatch whenever such causes are removed.

    12.4 Assignment: The Customer shall not assign, sub-license, sell, lease, encumber, charge or otherwise in any manner attempt to transfer this Agreement or any of its rights or obligations hereunder. Any purported transfer of this Agreement by the Customer in violation of this Clause shall be null and void. The Supplier shall be entitled to transfer this Agreement within the group of companies of which the Supplier is a member as well as to any third party in connection with the assignment to any such third party of the right of the Supplier to receive any sums payable by the Customer to it hereunder.

    12.5 Dispute Resolution: The Parties shall attempt to resolve any dispute arising under this Agreement through the informal means described in this Clause. If the Customer has reason to believe that the Customer’s rights and interests have been violated in connection with the use of the Cloud Services, the Customer may send a written complaint to the Supplier. The Supplier shall seek to respond to the complaint within ten (10) business days of receipt of the complaint. The response shall be sent to the Customer’s e-mail address as indicated in the complaint. If the parties fail to resolve the dispute in this manner, the dispute shall be resolved in accordance with this Agreement. The Supplier is not obligated to respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.

    12.6 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea and the parties shall submit to the non-exclusive jurisdiction and procedure of the Korean Courts.

    12.7 Non-waiver: No waiver or retraction of a waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom such waiver is sought. The failure of either party to exercise any right granted herein, or to require the performance by the other party hereto of any provision in this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.

    12.8 Notices: All notices, demands, or other communications by any party to the other shall be deemed to have been duly given when (i) made in writing and delivered in person with signed receipt, or (ii) sent via a nationally recognized, traceable, overnight delivery carrier, to the address detailed above, or to such address as the parties may provide to each other in writing from time to time. Notice will be effective upon delivery. Maintenance and Support Services related notices will be posted on Supplier’s then current web-based support portal. The Parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing.

    12.9 Amendments in writing: No variation of this Agreement shall be binding unless it is agreed in writing and signed on behalf of both parties by a duly authorized representative. No variation or omission from or addition to any of the terms and conditions of this Agreement whether written or oral shall be binding upon Supplier unless expressly accepted in writing by Supplier.

    12.10 Severability: If any Clause (or part of any Clause) of this Agreement is determined by a court of competent jurisdiction to be or becomes illegal, unenforceable or in conflict with any law governing this Agreement, such clause shall be adjusted to the minimum extent necessary (most closely reflecting the legal and economic intent of the parties) to cure such unenforceability, illegality or conflict and the remainder of this Agreement (and the remainder of the relevant Clause) shall remain in effect in accordance with its terms as modified by such adjustment.

    12.11 Entire Agreement: This Agreement as may be amended from time to time constitutes the entire agreement between the parties and supersedes all previous communications, non-fraudulent representations or prior and contemporaneous agreements (written or oral) between the parties with respect to the subject matter hereof.

    12.12 Cloud Services Attachments: In the event of any conflict or inconsistency in the definition or interpretation of any term or provision set forth in this Agreement, such conflict or inconsistency shall be resolved by giving precedence to the Cloud Services Attachment(s). Any contrary or additional terms and conditions attached to or part of any purchase order or similar document related to this Agreement shall be invalid and non-binding.

    13. MISCELLANEOUS TERMS
    13.1 Statute of Limitations
    Any claim, demand or cause of action relating to this Agreement will be deemed barred and forever waived if legal action or arbitration is not commenced with respect to such claim, demand or cause of action within two (2) years after the aggrieved party first acquires actual notice of such claim, demand or cause of action.

    13.2 Changes to the Cloud Service
    The Supplier may change or modify the Cloud Service at any time, at its sole discretion, without notice to Customer. Customer’s sole recourse is termination of the Agreement.

    13.3 Changes to the Agreement
    The Supplier may change the terms of this Agreement upon posting them to the Cloud Service or the website through which the Customer accesses the Cloud Service, and Customer’s continued use of the Cloud Service constitutes Customer’s acceptance of the changed terms of this Agreement.