Terms and Conditions
SUBSCRIPTION SERVICES AGREEMENT
Last Updated: 8/15/20
THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE SERVICES EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, A SCHOOL, SCHOOL DISTRICT OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO THE ENTITY ON WHOSE BEHALF YOU ARE ACTING. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES
This Agreement is effective between You and Us as of the date of You accepting this Agreement (the “Effective Date”).
“Administrators” mean the Subscriber-designated technical personnel that administer the Services on Subscriber’s behalf including, as applicable, the right to access, monitor, use, or disclose Service Configuration Data to Authorized Users.
“Applicable Law(s)” means all federal, national state, and local laws, rules, and regulations including, without limitation, those laws and regulations relating to student privacy and data privacy such as the Family Educational Rights and Privacy Act (31 U.S.C.A. §1232 et. seq.) (“FERPA”), and the Children’s Online Privacy Protection Act (13 U.S.C.A §1301 et. seq.).
“Authorized User” means an employee of Subscriber, an individual consultant engaged by and acting under the direction and control of Subscriber, or any parent or guardian of a Student, who is designated by Subscriber as having the right to use the Services.
“Cloud Platform for Education” or “Cloud Apps for Education” means the chosen Cloud Platform(s) of the Subscriber – Google Apps for Education or Microsoft Office 365 Education.
“User Content” means any content and associated metadata, such as assignments, lesson plans and other content that the Teachers and Students create, post, store and transmit through the Subscriber’s Cloud Apps domain.
“Fee(s)” means the Subscription Fee and all other fees payable or paid for other services purchased pursuant to an Order Page.
“Hāpara,” “We,” “Us,” or “Our,” means Hāpara, Inc.
“Initial Term” means the term that commences on the Effective Date and continues for at least one (1) year, as set out in the Order Form.
“Intellectual Property” or “Intellectual Property Rights” means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know-how, copyrights, and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions and renewals of any such grant, registration and/or right.
“Order Page” means an order that Subscriber completes to sign up for the Services, which may be online, submitted via facsimile or attached to this Agreement, and sets forth: (i) the Services; (ii) Fees, and the applicable form of payment (e.g., a valid credit card); (iii) number of Students, (iv) the Initial Term; and (iv) Subscriber Domain Names.
“Products” means one or more proprietary software applications and related technology used by Hāpara to provide the Services to Subscribers during the Term.
“Reseller” means an agent authorized by Hāpara to resell Services to Subscriber.
“Services” means the Services provided by Hāpara and used by Subscriber under this Agreement.
“Service Configuration Data” means any configuration data, files, text, and any other information that is required to configure and operate the Services, excluding Student Data.
“Student” means a student enrolled by the Subscriber and designated by the Subscriber to be included in the Services.
“Student Data” means the Student content and related metadata, and Student personally identifiable information.
“Subscriber,” “You” or “Your” means the company or other legal entity for which you are accepting this Agreement.
“Subscriber Domain Names” mean the Cloud Apps for Education domain names owned or controlled by Subscriber, which will be used in connection with the Services and specified in the Order Page.
“Subscriber Users” means the Authorized Users and Administrators designated by Subscriber from among its teachers and staff to use and administer the Services on behalf of Subscriber.
“Subscription Fee” means the amounts invoiced to Subscriber by Hāpara or Reseller for the Services as described in an Order Page.
“Teacher” means a teacher employed by the Subscriber and designated by the Subscriber to be included in the Services.
“Teacher Data” means the Teacher content and related metadata, and name and Cloud Apps (work) email address.
“Term” means the applicable Initial Term and all renewal terms for the applicable Services.
“Third Party” means any entity, organization or individual except Hāpara, Reseller or Subscriber.
“Work Product” means any and all data (other than Service Configuration Data), information, materials, inventions, computer programs and computer software (including, without limitation, all source code), designs, specifications, schematics, production formats, production processes, production design processes and formulae, development tools, inventions, ideas, concepts, know-how, techniques, flow charts, outlines, lists, compilations, writings and pictorial materials, and all documentation, materials, code and media constituting, describing or relating to the foregoing including, without limitation, manuals, memoranda, records and deliverables.
- LICENSE GRANT
2.1 Subject to the terms and conditions of this Agreement, Hāpara hereby grants to Subscriber during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 10.2 below) license, without the right to grant sublicenses, to access the Products remotely via the Internet solely for the purpose of using the Services (the “License”). Pursuant to the License, Subscriber shall have the right to designate the number of Students and/or devices. The applicable Subscription Fees shall be as set forth in Order Page.
Subscriber shall also have the right to designate Subscriber Users, subject to the functionality constraints of the Services. You are solely responsible for ensuring that Subscriber Users are legally permitted under Applicable Law(s) to access and use Student Data. Hāpara shall have no liability for any unauthorized access to Student Data. Hāpara may make additional, optional add-on services available to Subscribers for a Fee from time to time during the Term.
2.2 Subscriber shall be solely and exclusively responsible for: (i) compliance with this Agreement by all Subscriber Users; (ii) the accuracy and quality of the Service Configuration Data and the User Content, (iii) using commercially reasonable efforts to prevent unauthorized access to or use of the Services, the Products and the Hāpara Intellectual Property, and for notifying Hāpara promptly of any such unauthorized access or use thereof, (iv) using the Services, Products and Hāpara Intellectual Property strictly in accordance with Applicable Laws, (v) as required by Applicable Law, notifying Students, parents and guardians, and obtaining and maintaining informed consents from Students, parents and guardians, to permit (a) Subscriber to purchase and use the Services including, without limitation, permitting Subscriber to access, monitor and use the Service Configuration Data and the User Content, and to disclose the Service Configuration Data and the User Content to Subscriber Users, and (b) Hāpara to exercise its license rights and provide the Services to Subscriber in accordance with this Agreement, (vi) obtaining and maintaining all computer hardware, Internet access and Internet services, including Cloud Apps for Education, and other equipment and/or services needed to access and use the Services properly and all costs and fees associated therewith, and (vii) complying with all applicable Third Party agreements including, without limitation, “Cloud Apps for Education Agreement” for the Term of the Agreement.
2.3 Subscriber will not (and shall ensure that the Subscriber Users and any Third Parties do not): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services, the Products or the Hāpara Intellectual Property; (ii) modify, adapt, or translate the Services, the Products or the Hāpara Intellectual Property; (iii) make any copies of the Services, the Products, or the Hāpara Intellectual Property; (iv) resell, distribute, or sublicense the Services, the Products or the Hāpara Intellectual Property; (v) make the Services, the Products or the Hāpara Intellectual Property available on a “service bureau” basis, or otherwise allow any Third Party to use or access any of the foregoing; (vi) remove or modify any proprietary marking or restrictive legends placed on the Services, the Products or the Hāpara Intellectual Property; (vii) use the Services, the Products or the Hāpara Intellectual Property in violation of any Applicable Laws or for any purpose not specifically permitted in this Agreement; or (viii) introduce into the Services, the Products or the Hāpara Intellectual Property any software, virus, worm, “back door,” Trojan Horse, or similar harmful code. Subscriber may not use or access the Services if Subscriber is Our direct competitor, except with Our prior written consent. In addition, Subscriber may not access the Services for purposes of monitoring performance or functionality, or for any other benchmarking or competitive purposes.
2.4 As between the parties, Subscriber and/or the applicable Authorized User retains all rights, title, and interest in and to the Service Configuration Data and User Content. Subscriber hereby grants to Hāpara a) licenses in and to such Service Configuration Data; b) access to Subscriber domains named by the Subscriber Domain Names as necessary for Hāpara to provide the Services and perform its obligations hereunder; and c) a non-exclusive, royalty-free license to modify, compile, combine with other content and data, copy, record, synchronize, format, and index the User Content and display, perform, and make it available to others through the Services on the Products designated by the Authorized Users. Upon expiration or termination of this Agreement, Hāpara shall cease accessing the Service Configuration Data, Subscriber Domain Names and User Content.
2.5 Subscriber is responsible for creating Cloud Accounts for all Authorized Users and for providing the details of those Cloud Accounts to Hāpara. Hāpara will then provide access to and use of the Services for Authorized Users with properly obtained Cloud credentials (an “Account”). The Subscriber is solely responsible for the confidentiality and use of the Authorized Users’ Accounts, Usernames and Passwords, as well as for any use, misuse, or communications using one or more of them. Hāpara and Reseller will not be liable for any loss or damage caused by any unauthorized use of Accounts, Passwords or Usernames.
2.6 The parties acknowledge and agree that, as a result of negotiating, entering into, and performing this Agreement, each party (the “Receiving Party”) has and will have access to certain confidential information (“Confidential Information”) of the other party (the “Disclosing Party”). “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder that is related to (i) the past, present and future business activities of the Disclosing Party; (ii) the Disclosing Party’s business plans, pricing, financial information, methods, processes, code, data, information technology, network designs, and any Third Party data, information, materials, software, products or services that the Disclosing Party has agreed to maintain in confidence; (iii) the terms of this Agreement that are not made public by the publication of this Agreement ; and (iv) any other information that is designated as confidential by the Disclosing Party. For avoidance of doubt, Hāpara Confidential Information includes the Services, the Products and the Hāpara Intellectual Property. Confidential Information does not include information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) received by Receiving Party from a Third Party without any obligation of confidentiality; (iii) already in Receiving Party’s possession prior to the date of receipt from Disclosing Party without any obligation of confidentiality; or (iv) independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party. At all times the Receiving Party shall: (1) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (2) not use the Disclosing Party’s Confidential Information other than as necessary to perform its obligations under this Agreement, and (3) not disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any Third Party except to its Authorized Users on a “need to know basis;” provided that each Authorized User is bound by confidentiality obligations at least as restrictive as those contained in this Agreement.
- FINANCIAL TERMS
3.1 As consideration for the License and the Services, Subscriber will pay Hāpara or, at Hāpara’s discretion noticed on the Order Page, pay Reseller, the Fees set forth on the applicable invoice within thirty (30) days of the invoice date. Unless otherwise mutually agreed in writing, Subscription Fees shall be invoiced annually in advance based on the number of Students and/or devices selected by Subscriber, and are not refundable under any circumstances. If Subscriber exceeds the number of Student and/or devices subscribed, then Subscriber shall pay Subscription Fees for the additional Students and/or devices at the rate or rates set forth in Hāpara’s schedule of fees . Unless otherwise agreed in invoice, all amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars.
3.2 The Fees do not include applicable transaction taxes. If Hāpara or Reseller is required by Applicable Laws to pay any federal, state, county, local, or value added tax, sales and use tax, goods and services tax, or similar applicable taxes based on this Agreement, Hāpara shall ensure that such taxes are invoiced to Subscriber in accordance with applicable rules so as to allow Subscriber to reclaim such value-added and/or similar tax from the appropriate government authority. Nothing in this Agreement, however, shall require Subscriber to pay any payroll, franchise, corporate, partnership, succession, transfer, income, excise, profits, or income tax of Hāpara or Reseller.
- TERM AND TERMINATION
4.1 This Agreement commences on the Effective Date and continues until terminated as set forth herein.
4.2 This Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term”) at the end of the Initial Term and each Renewal Term. You will be invoiced for Hāpara’s then current annual Subscription Fee for each Renewal Term. If You do not wish to renew Your subscription, You must provide Us prior, written notice at least 30 days before the end of the Initial Term, or any Renewal Term.
In the event of a material breach of this Agreement by a party, the other party may terminate this Agreement by giving 30 days prior, written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach before the expiration of such 30 day period. In any event, if Subscriber materially breaches Section 2.3 , then Hāpara may terminate this Agreement immediately upon written notice to Subscriber.
(c) Either party may immediately terminate this Agreement on notice to the other party if the other party becomes insolvent, is unable to pay its debts as they mature, files for bankruptcy protection, is forced into bankruptcy, is placed under receivership, or makes a general assignment for the benefit of its creditors.
4.4 Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement:
(a) Subscriber will promptly pay Hāpara for all amounts payable hereunder as of the effective date of termination or expiration;
(b) all rights and licenses granted hereunder will immediately cease;
(c) Subscriber will immediately cease all access and use of the Services and the Products, and Hāpara will immediately cease accessing the Service Configuration Data and the User Content.
4.5 The following provisions will survive any termination or expiration of this Agreement: 3.1, 5, 6, 7, 8, 9, and 10.
- Hāpara INTELLECTUAL PROPERTY
5.1 As between Hāpara and Subscriber, Hāpara shall own all right, title, and interest in and to (i) its pre-existing Intellectual Property, (ii) the Services and the Products including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to its Intellectual Property, the Services and Products, and (iii) all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works of the foregoing, and all Intellectual Property Rights therein (the “Hāpara Intellectual Property”). Subscriber hereby irrevocably assigns to Hāpara each and every right, including all Intellectual Property Rights (and shall cause the Subscriber Users, and any entity or individual employed, engaged, or otherwise under contractual duty to Subscriber, to assign to Hāpara) that it or they may have in any of the Hāpara Intellectual Property. Upon Hāpara’s request, Subscriber will execute and deliver such instruments of transfer and other documents to effect, complete and confirm such assignment and acknowledges and agrees to take all appropriate steps to secure for Hāpara the rights and benefits of Hāpara in and to the Hāpara Intellectual Property (and shall cause the Subscriber Users, and any entity or individual employed, engaged otherwise under contractual duty to Subscriber to do so as well).
5.2 Except for the License, nothing contained in this Agreement or otherwise shall be construed to grant to Subscriber any right, title, license or other interest in, to or under any Hāpara Intellectual Property (whether by estoppel, implication or otherwise). Subscriber shall not challenge, or assist any person or entity in challenging, Hāpara right, title, and interest in the Hāpara Intellectual Property.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER
6.1 Each party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to complete and discharge its obligations hereunder, and to grant the licenses and rights granted hereunder, and (ii) it does and will continue to comply with all Applicable Laws. Subscriber represents and warrants to Hāpara that it is an accredited educational institution under all Applicable Laws.
6.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE SERVICES, PRODUCTS AND OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Hāpara DOES NOT MAKE, AND SUBSCRIBER EXPRESSLY WAIVES, ANY AND ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. To the extent that a party may not as a matter of Applicable Law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
- LIMITATION OF LIABILITY
7.1 IN NO EVENT SHALL Hāpara BE LIABLE TO SUBSCRIBER, SUBSCRIBER USERS, STUDENTS, OR ANY THIRD PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUBSCRIBER, SUBSCRIBER USERS, STUDENTS, OR ANY THIRD PARTY) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF GOODWILL OR REPUTATION, BREACH OF PRIVACY OR SECURITY) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER Hāpara KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF.
7.2 Hāpara MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, INDEMNITY, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE SUBSCRIPTION FEES PAID TO Hāpara OR ITS RESELLER BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES, PLUS THE TOTAL AMOUNT OF ANY SUBSCRIPTION FEES PAYABLE UNDER THIS AGREEMENT TO Hāpara OR ITS RESELLER BY SUBSCRIBER BUT ARE UNPAID AT THE TIME OF THE CLAIM.
7.3 IN NO EVENT SHALL Hāpara BE LIABLE FOR DAMAGES ARISING FROM ANY OUTAGES OR MALFUNCTION OF ANY THIRD PARTY SERVICES (e.g., CLOUD OR NETWORK INFRASTRUCTURE OUTAGES, CHANGES TO CLOUD APPS, OR ANY CLOUD SERVICES).
7.4 THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN Hāpara AND SUBSCRIBER, AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO SUBSCRIBER IN THIS AGREEMENT ARE EXCLUSIVE. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.1 Hāpara will, at its own expense, defend any Third Party claim, action or proceeding against Subscriber and its officers, directors, employees, and agents (each, a “Subscriber Indemnitee”) solely from and against any and all final judgments and settlement payments (collectively, “Losses”) incurred by such Subscriber Indemnitees to the extent such Third Party claim arises from or relates to, an allegation that the Products infringe any United States registered patent or copyright, or misappropriates Third Party trade secrets (except to the extent covered by the indemnity under Section 9.4 below).
8.2 Hāpara shall not be obligated under Section 8.1 to the extent (i) the Loss arises from or is based upon use by Subscriber or any Subscriber User of (a) the Products or Services in a manner for which they were not intended; or (b) any unauthorized enhancements, modifications, alterations, or implementations of the Products or Services; or (ii) the claim arises from use of the Products or Services in combination with unauthorized modules, apparatus, hardware, software, or services; or (iii) the claim arises from any use of the Products or Services that violates this Agreement or any Applicable Law of any governmental authority or self-regulatory agency or authority; or (iv) the claim arises from any use of the Products or Services for which they were not designed.
8.3 In the event that Hāpara reasonably determines that the Products are likely to be the subject of a claim under Section 8.1, Hāpara shall have the right (but not the obligation), at its own expense and option, to: (a) procure for Subscriber the right to continue to access and use the Products pursuant to the License for the remainder of the then-current Term, (b) replace the infringing components of the Products with other components with the same or similar functionality; or (c) suitably modify the Products so that they are non-infringing. If none of the foregoing options are available to Hāpara on commercially reasonable terms, Hāpara (A) may terminate this Agreement without further liability to Subscriber, and (B) refund to Subscriber an amount equal to a pro rata portion of the Subscription Fees prepaid by Subscriber (calculated on a 5 year straight line basis commencing on the Effective Date of this Agreement). This Section 8.3, together with the indemnity provided under Section 8.1, states Subscriber’s sole and exclusive remedy, and Hāpara’s sole and exclusive liability, regarding any and all infringement or misappropriation of any Intellectual Property Rights of any Third Party arising from, or related to, the Products, the Services or this Agreement.
8.4 Subscriber will indemnify, defend, and hold harmless Hāpara and its respective officers, directors, employees, and agents (each, an “Hāpara Indemnitee”) from and against any and all Losses incurred by such Hāpara Indemnitees in connection with any Third Party claim to the extent arising from, alleging or relating to (i) any data, information or materials provided by Subscriber hereunder, including, without limitation, the Service Configuration Data, and the Authorized User Content when used in connection with the Services or the Products: (a) infringes or misappropriates any United States patent, copyright, trade secret, or other Intellectual Property Rights of any Third Party (except to the extent covered by the indemnity under Section 8.1 above), or (b) violates any Applicable Laws, (ii) Subscriber’s actual or alleged violation of Applicable Law, or breach of this Agreement.
8.5 An indemnified party shall give an indemnifying party written notice as soon as reasonably possible after its receipt of any claim for which it would be indemnified pursuant to this Section. An indemnifying party shall have the right to control and direct the defense of such claim. Upon request, the indemnified party shall cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party and its attorneys in the investigation, trial and defense of such claim, and any appeal arising therefrom. An indemnifying party shall not agree to any settlement or consent to judgment that requires any admission of liability or payment of monies by an indemnified party without such party’s prior written consent. An indemnified party shall have the right, at its expense, to retain counsel and participate in defense of the claim strictly on a monitoring basis.
- WORK PRODUCT; OWNERSHIP
9.1 During the Term, Reseller and/or a Subscriber may request that Hāpara develop Work Product in connection with the Services. The Services do not include such professional services, which may be available from Hāpara or its designee, at their sole discretion, pursuant to a separate professional services agreement.
9.2 Neither party shall have any rights to any domain name, internet addresses or related registrations of the other party.
- GENERAL PROVISIONS
10.1 Each party is an independent contractor of the other party. Nothing herein will constitute a partnership between or joint venture by the parties, or constitute either party the agent of the other.
10.2 Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other party; provided, however, that a party may, upon written notice to the other party and without the consent of the other party, assign or otherwise transfer this Agreement: (i) to any of its affiliates or (ii) in connection with a change of control transaction (including, by way of example and not of limitation, merger, acquisition, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in the case of a change of control of Subscriber, the acquiring company is not a competitor of Hāpara. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
10.3 Except with respect to failure to pay any amount due under this Agreement, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
10.4 This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.
10.5 Neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, (a) Subscriber is permitted to state publicly that it is a customer of the Services, and (b) Subscriber consents to Hāpara’s use of Subscriber’s name in a general customer list, but only if Subscriber is not the only Subscriber appearing on the list. For clarification, Subscriber does not need to seek approval from Hāpara if Subscriber is repeating a public statement that is substantially similar to a public statement that has been previously approved by Hāpara in accordance with the provisions of this Agreement.
10.6 The parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Delaware for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions or proceedings arising out of or relating to this Agreement.
10.7 No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both parties. The rights and remedies of the parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent.
10.8 This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes (i) all prior agreements and commitments with respect thereto, and (ii) any different or additional terms or conditions contained in any purchase order, agreement, or any other document or understanding, whether written or oral. There are no other oral or written understandings, terms or conditions and neither party has relied upon any representation, express or implied, not contained in this Agreement.