1.1 “Agreement” means this ToS and Order Forms referencing this ToS.
1.2 “Applicable Laws” means all applicable international, federal, state, and local laws, statutes, rules, regulations, and policies related to the Services, Confidential Information, Data, and subject matter of this ToS and Order Forms. Applicable laws include but are not limited to the Telephone Consumer Protection Act, Truth in Caller ID Act, CAN-SPAM Act, Do Not Call Registry, Telemarketing Sales Rule, and the Fair Debt Collection Practices Act.
1.3 “Client” means the entity or person purchasing Services from Numeracle pursuant to an Order Form.
1.4 “Data” means any data, information, content, names, phone numbers, and other materials that are uploaded, input, transmitted, generated, received, or otherwise provided or used by Client or Users, via the Services.
1.5 “IP Rights” means worldwide: (a) patents and other governmental grants for the protection of inventions; (b) patentable inventions; (c) copyright, copyright registrations, and rights of publicity; (d) trade secrets, inventions, and know-how; (e) trademarks, trade names, logos, service marks, designs, trade dress, emblems, signs, insignia, slogans, other similar designations of source or origin, and general intangibles of like nature (collectively, “Trademarks”); (f) any registrations or applications for registration for any of the foregoing; (g) analogous rights to those set forth above and any other intellectual property or proprietary rights in any jurisdiction; (h) all derivatives of the rights set forth above; and (i) rights to sue for infringement of the rights set forth above.
1.6 “Numeracle” means Numeracle, Inc., a Delaware Corporation, and its subsidiaries and affiliates.
1.7 “Order Form” means an agreement pursuant to which Client purchases Services from Numeracle that references this ToS and is governed by this ToS.
1.8 “Party” means Client or Numeracle. Client and Numeracle collectively are the “Parties.”
1.9 “Services” means the services Numeracle agrees to provide to Client, as identified in an Order Form.
1.10 “Software” means the software made available by Numeracle, as identified in an Order Form, to be accessed by Client when using the Services.
1.11 “System” means the hardware, configuration, systems software, applications software, software utilities, firmware, embedded software, telecommunications equipment and connectivity, hosting sites, and other facilities that Numeracle hosts, maintains, and uses to provide Users with access to and use of the Software and Services.
1.12 “Term” shall mean the duration of the current Order Form, any subsequent Order Forms entered into between the Client and Numeracle, as well as any extensions or renewals.
1.13 “ToS” means these Terms of Service, and incorporates any referenced policies, schedules, exhibits, and attachments governs the terms of each Order Form entered into by Numeracle and Client.
1.14 “Trusted Identity” means a verified set of information or credentials the Client provides, which Numeracle relies upon to confirm the Client’s eligibility to access and utilize the Services.
1.15 “Users” are employees, agents, customers, and third-party contractors of Client that have been designated by Client to access the Numeracle System.
2.1 Order Forms. All Order Forms entered into by and between Client and Numeracle are subject to the terms and conditions of this ToS. All changes to any Order Form must be made in accordance with Section 12.11 of this ToS.
2.2 Conflict. In the event of a conflict between the terms and conditions of this ToS and an Order Form, the terms and conditions of the Order Form shall control.
3.1 License to Services. Subject to the terms and conditions of this ToS and applicable Order Form, Numeracle grants to Client the license to the Services as described in such Order Form.
(a) Restrictions. Client shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how, or other information from, or attempt to circumvent technical measures implemented to deter unauthorized access, use, or distribution of, the Services or Numeracle Confidential Information; (ii) use the Services in a manner that is prohibited by Applicable Laws, this ToS or the applicable Order Form, or that will infringe, violate, or misappropriate any third-party IP Rights; (iii) modify, copy, or create derivative works based on the Services or Numeracle Confidential Information; (iv) frame or mirror any content forming part of the Services unless permitted by an Order Form; (v) access the Services in order to build a competitive product or service similar to the Services; (vi) publish or provide to third-parties, any performance or comparison tests of the Services; (vii) license, sublicense, sell, rent, lease, transfer, assign, distribute, time share, host, or otherwise commercially exploit the Services to any third-parties unless permitted by an Order Form; (viii) upload or store within the Services any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files scripts, agents, or programs; (ix) interfere with or disrupt the integrity or performance of the Services; (x) attempt to gain unauthorized access to the Services or its related systems or networks, including without limitation, accessing content or materials not intended for Client (or Users), logging onto an account that Client (or Users) is not authorized to access, attempting to probe, scan, or test the vulnerability of the Services, or accessing or attempting to access the Services by any means (automated or otherwise), other than through the currently available, published, and enabled interfaces provided by Numeracle; or (xi) breach additional restrictions, if any, as described in the applicable Order Form.
(b) Updates. Numeracle shall, in its sole discretion, provide updates to the Services, if any, within a reasonable time after those updates are completed by Numeracle. All updates will be deemed part of the Services and will be subject to the terms and conditions of this ToS and the applicable Order Form.
(c) Users. Client will be fully responsible and liable for use of the Services by Users, including without limitation, Users compliance with all terms and conditions described in this ToS and Order Forms referencing this ToS. Client further represents and warrants that: (a) Users shall use the Services for Client’s internal business purposes only; (b) Users are aware of the restrictions, obligations, conditions, disclaimers and limitations of liability with respect to the Services as described in this ToS and Order Form ; and (c) it will be fully and completely responsible and liable for all activity under its and Users’ accounts (including without limitation, the accuracy, quality, integrity, legality and appropriateness of all Data submitted by Client and Users to the Services).
3.2 License to Data. Client hereby grants to Numeracle a worldwide, non-exclusive, limited, assignable and transferrable, sublicensable right and license, during the applicable Term, to store, host, reproduce, maintain, compile, modify, edit and otherwise use the Data only to provide the Services and perform Numeracle’s obligations under this ToS and the applicable Order Form; and for no other purpose or under any other condition.
3.3 License in Client Trademarks. Client hereby grants to Numeracle a worldwide, non-exclusive, limited, assignable, and transferrable sublicensable right and license, during the applicable Order Form Term, to use Client Trademarks only to: (a) provide the Services and perform Numeracle’s obligations under this ToS and the applicable Order Form; and (b) additional rights, if any, as described in the applicable Order Form; and for no other purpose or under any other condition whatsoever.
4.1 Data. Client agrees to collect, disclose, store, and use the Data in accordance with all Applicable Laws and Client’s own posted privacy policies, which shall comply with all Applicable Laws. Client hereby represents and warrants that it: (a) has obtained the requisite approvals, authorizations and/or consents necessary for the transmission, use, disclosure, storage, and processing of the Data as contemplated under this ToS and all Order Forms; and (b) shall comply with all Applicable Laws, with respect to its use of the Data as contemplated under this ToS and all Order Forms. Client shall indemnify, defend, and hold harmless Numeracle and its Indemnitees (defined below), for Client’s failure to perform any of its obligations under this Section 4.1.
5.1 Term. The Term of the Services subscription is set forth in the applicable Order Form. This ToS and any subscription may be terminated only in accordance with Section 5.2 below.
5.2 Termination. This Agreement will be immediately terminable only as follows: (a) in the event a material breach of this ToS or Order Form by a Party is not substantially cured within thirty (30) days from receipt of written notice from the non-breaching Party that describes such material breach (a material breach includes Client’s failure to provide sufficient documentation to obtained a Trusted Identity from Numeracle); or (b) if the other Party becomes insolvent or unable to pay its debts in the ordinary course of business or makes an assignment for the benefit of its creditors, or proceedings (whether voluntary or involuntary) are commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief laws. For avoidance of doubt, the Fees are non-cancelable and non-refundable, except in the case of Client’s termination of an Order Form due to Numeracle’s failure to timely cure a material breach, where Client shall be entitled to a pro-rata refund as of the effective date of termination. In the event Numeracle terminates an Order Form due to Client’s uncured material breach, Client shall immediately pay all outstanding fees owed, including all unpaid fees applicable to the Term. Under no circumstances shall Client be permitted to terminate an Order Form for convenience.
5.3 Effect of Termination. The expiration or termination of an Order Form shall automatically result in termination of all Services under such Order Form, but other Order Forms shall continue in full force and effect. Upon termination of this Agreement (or an Order Form): (a) all access and licensed rights under this ToS (or applicable Order Forms), including without limitation, the Services, will automatically terminate and revert to Numeracle; (b) each Party will promptly return or destroy all copies of the other Party’s Confidential Information under this ToS (or applicable Order Form); and (c) Client will cease all use of the Services under this ToS (or applicable Order Form). Notwithstanding the foregoing, if an Order Form terminates for any reason, Numeracle (x) may retain one copy of Client Data solely for archival, audit, disaster recovery, legal, or regulatory purposes and (y) will not be required to search archived electronic back-up files of its computer systems for Client Data in order to purge the Client Data from its archived files; provided, however, that Numeracle must maintain confidentiality of the retained Client Data under the applicable Order Form as if such Order Form were still in effect.
5.4 Survival. All terms and provisions, which by their nature should survive termination of this Agreement or the applicable Order Form, shall so survive, including Sections 1, 3.1(a), 3.1(c), 4, 7, 8, 9, 10, 11, and 12.
6.1 Fees. Client will pay Numeracle all fees for the Services as described in the applicable Order Form (“Fees”). Prices do not include shipping, insurance, handling, sales, use, VAT, excise, export, withholding, surcharges, or similar taxes of fees, which amount shall be paid by Client.
6.2 Payment. Client authorizes a one time and/or regularly scheduled charge to Clients checking/savings account. Client will be charged all Fees for the Services as described in the applicable Order Form unless otherwise agreed upon by Client and Numeracle, Inc., in writing. Client understands that this authorization will remain in effect until Client cancels it in writing, according to the Termination terms in section 5 of this ToS. Client agrees to notify Numeracle, Inc. in writing of any changes in Clients' account information at least 15 days prior to the next billing date. If payment dates fall on a weekend or holiday, Client understands that the payments may be executed on the next business day. For ACH debits to Client’s checking account, Client understands that because these are electronic transactions, these funds may be withdrawn from Client’s account as soon as the signed execution date of the Order Form. In the case of an ACH Transaction being rejected for Non-Sufficient Funds (NSF), Client understands that Numeracle may at its discretion attempt to process the charge again within 30 days. Client certifies that Client is an authorized user of this bank account and will not dispute these scheduled transactions with Client’s bank so long as the transactions correspond to the terms indicated in this ToS and the applicable Order Form.
6.3 Late Payment Charges and Suspension. If Client fails to timely pay the Fees, then at the sole discretion of Numeracle: (a) such charges may accrue late interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower, from the date such payment was due until the date of full payment (plus interest) is paid; (b) Numeracle may limit or suspend Client’s license to use the Services until payment is made in full (plus interest) and such suspension shall not be construed as a breach by Numeracle of this ToS or the applicable Order Form; and/or (c) accelerate any unpaid Fees obligations under such Order Form so that all Fees obligations become immediately due and payable.
6.4 Payment Disputes. If Client provides written notice to Numeracle prior to the payment due date of a dispute with any portion of such payment, Numeracle shall not charge a late fee under Section 6.3 as to the actual amount in dispute; provided that Client is disputing the applicable Fees reasonably and in good faith and is diligently cooperating with Numeracle to promptly resolve the dispute. Upon resolution of the dispute, late payment charges as described in Section 6.3 will be imposed from the date the dispute is resolved.
7.1 By Numeracle. Numeracle owns all rights, title, and interest in and to the Services, Numeracle Confidential Information, and all IP Rights. Except for the limited license to the Services as described in the applicable Order Form, Client shall not have any ownership or other rights in or to the Services or any other IP Rights. Client acknowledges the Services are licensed and not sold, and ownership of the Services and all IP Rights and goodwill associated therewith shall remain exclusively with Numeracle. The Services and Numeracle Confidential Information contain material that is protected by United States copyright laws, patent laws, trade secret laws, and by international treaty provisions. All licenses not expressly granted are reserved by Numeracle.
7.2 By Client. Client owns all rights, title, and interest in and to the Data, Client Confidential Information, Client Trademarks, and all IP Rights related thereto.
8.1 Definition. During the Term of this Agreement and Client’s use of the Services under Order Forms, each Party (“Disclosing Party”) may provide, directly or indirectly, the other Party (“Receiving Party”) with confidential, non-public and/or proprietary materials and information (collectively, “Confidential Information”), including without limitation, trade secrets, contractual terms, customer and potential customer information, call identity details, marketing and business plans, technical information, designs, concepts, know-how, and other ideas. Without limiting the foregoing, the Services shall be considered Numeracle Confidential Information. Disclosing Party’s Confidential Information will not include information Receiving Party can document: (a) is previously known to Receiving Party without an obligation of confidentiality or access to Disclosing Party’s Confidential Information; (b) is independently developed by or for Receiving Party or Receiving Party’s employees, consultants, or agents without reference to or use of Disclosing Party’s Confidential Information; (c) was lawfully acquired by Receiving Party from a third-party who is not under an obligation of confidentiality with respect to such information; or (d) which is or becomes publicly available through no fault or act of Receiving Party or not as a result of a breach of this ToS or Order Form.
8.2 Protection of Confidential Information. Receiving Party will hold Disclosing Party’s Confidential Information in confidence and will take reasonable care, but in no instance less than the degree of care it uses to protect and maintain its own information of similar nature that it considers to be confidential, to assure that Disclosing Party’s Confidential Information will not be disclosed to others, in whole or in part, except as otherwise provided or in the applicable Order Form. Disclosing Party retains all ownership rights in and to its Confidential Information (regardless of the form in which it is disclosed) and all IP Rights associated with its Confidential Information. Receiving Party will not use, disclose, duplicate, or distribute any of Disclosing Party’s Confidential Information, except as necessary to perform its obligations under this ToS or applicable Order Form. Further, with respect to any such necessary disclosure or distribution, Receiving Party will limit such disclosure or distribution to those of its employees, officers, agents, and contractors who have a need to know Disclosing Party’s Confidential Information for purposes of Receiving Party’s performance of its obligations hereunder and that are bound by confidentiality obligations and restrictions at least as protective as this ToS and applicable Order Form, and Receiving Party will limit such disclosure or distribution so as to only disclose or distribute those applicable portions of Disclosing Party’s Confidential Information that such employee, officer, agent, or contractor needs to know. Receiving Party shall promptly notify Disclosing Party in the event of any unauthorized use or disclosure of Disclosing Party’s Confidential Information.
8.3 Compelled and Other Disclosure. Receiving Party will not be in breach of Section 8.2 and may disclose Disclosing Party’s Confidential Information: (a) to the extent that such disclosure is compelled by law or similar judicial or administrative body, provided that it will provide Disclosing Party prompt written notice of such disclosure (to the extent legally permitted) and, at Disclosing Party’s cost, any reasonable assistance Disclosing Party requests to contest or limit the disclosure (and Receiving Party shall only disclose that portion of Disclosing Party’s Confidential Information that it is legally required to disclose); (b) to its legal counsel and other professional advisors if and to the extent such persons need to know Disclosing Party’s Confidential Information in order to provide applicable professional advisory services in connection with its business; or (c) to its current and potential lenders, acquirors, or investors in connection with a due diligence inquiry.
8.4 Disposition of Confidential Information. Upon termination of this Agreement or applicable Order Form, Receiving Party will, unless otherwise provided or the applicable Order Form: (a) return all of Disclosing Party’s Confidential Information to Disclosing Party; or (b) if requested by Disclosing Party, destroy all of Disclosing Party’s Confidential Information and certify to such destruction. Notwithstanding the foregoing, Receiving Party may retain parts of Disclosing Party’s Confidential Information that it, in its reasonable judgment, determines it is required to retain for legal and/or compliance purposes; provided however, Receiving Party’s obligations under this ToS (and any Order Form) related to Disclosing Party’s Confidential Information will continue for so long as Receiving Party retains such parts of Disclosing Party’s Confidential Information.
9.1 Numeracle Representations and Warranties. Numeracle hereby represents and warrants to Client that: (a) it has all rights, licenses, approvals, and necessary authority to provide the Services under this ToS and Order Forms; (b) the Services (excluding the Data, Client Trademarks, and other material submitted by Client or Users) do not infringe, violate, or misappropriate any IP Right of any third-party; (c) it will comply with all Applicable Laws related to its provision of the Services; and (d) it will conduct its business activities in a legal and ethical manner.
9.2 Client Representations and Warranties. Client hereby represents and warrants that: (a) it has all rights, licenses, approvals and necessary authority to enter into and perform its duties and obligations under this ToS and Order Forms, including without limitation, related to the Data and Client Trademarks; (b) the Data, Client Trademarks, and other material submitted by Client or Users via the Services do not infringe, violate, or misappropriate any IP Right of any third-party; (c) it will comply with all Applicable Laws while engaged in any activity that makes use of the Services and in connection with this ToS and Order Forms; (d) any collection, use, disclosure, or storage of any Data obtained on or through the Services will comply with all Applicable Laws; (e) it will not engage in any unacceptable, inappropriate, fraudulent, or other bad behaviors related to the Services, including without limitation, facilitating illegal telephone calls or spam label evasion through number rotation practices; (f) it will conduct its business activities in a legal and ethical manner; (g) it has submitted and will submit complete and truthful information; and (h) it will commit no act that would reflect unfavorably on Numeracle.
9.3 Disclaimer. THE SERVICES, INCLUDING NUMERACLE CONFIDENTIAL INFORMATION AND DATA SOURCES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, CONDITION OR WARRANTY OF ANY SORT BEING MADE BY NUMERACLE OR OTHERWISE BEING RELIED UPON BY CLIENT OR USERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUMERACLE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR COLLATERAL, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, ACCURACY, COMPATIBILITY, SECURITY, RELIABILITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NUMERACLE DOES NOT REPRESENT OR WARRANT THE SERVICES, INCLUDING NUMERACLE CONFIDENTIAL INFORMATION AND DATA SOURCES, WILL MEET ANY OR ALL OF THE CLIENT’S OR USER’S REQUIREMENTS, THAT THE OPERATION WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT PROGRAMMING ERRORS CAN BE FOUND OR CORRECTED. NUMERACLE DOES NOT WARRANT OR GUARANTEE ANY THIRD-PARTY’S CONDUCT OR PERFORMANCE, INCLUDING ANY PARTICULAR TREATMENT OF CLIENT’S OR USERS’ COMMUNICATIONS BY ANY TELEPHONE CARRIER, APP PROVIDER, OR ANALYTICS COMPANY. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO CLIENT OR USERS.
10.1 Indemnification of Client. Numeracle will defend, indemnify, and hold Client and its affiliates, officers, directors, owners, employees, and agents (collectively, “Indemnitees”) harmless from and against any and all claims, governmental investigations, demands, actions, liabilities, and proceedings, real or threatened, and all losses, expenses, judgments, awards, settlements, damages, fines, injuries, penalties, and costs (including without limitation, reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising out of or related to any third-party claim the Services infringe, violate, or misappropriate any IP Right of such third-party.
10.2 Indemnification of Numeracle. Client will defend, indemnify, and hold Numeracle and its Indemnitees harmless from and against any and all Losses arising out of or related to: (a) any breach or alleged breach of this ToS or Order Form by Client and/or Users; (b) Client’s violation of any Applicable Law; and (c) Client’s gross negligence or willful misconduct.
10.3 Indemnification Procedure. Indemnified Party will give prompt written notice to indemnifying Party of any claim for which indemnification is sought under this Agreement. Failure to give such notice will not relieve indemnifying Party of its obligation to provide indemnification except to the extent that such failure materially adversely affects the ability of indemnifying Party to defend the applicable claim. Indemnifying Party shall have sole control of the defense and settlement of any claim made pursuant to this Section 10; provided however: (a) indemnified Party may monitor the defense of the claim with counsel of its own choosing at its own cost and expense; and (b) indemnifying Party will not settle or dispose of any claim in any manner that would adversely affect the rights or interests of indemnified Party (including without limitation, payment of money, attribution of fault or liability, or requires an act or admission), without the prior written consent of a duly authorized representative of indemnified Party.
11.1 No Consequential Damages. EXCLUDING A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (SECTION 8) OR A PARTY’S INDEMNIFICATION OBLIGATIONS (SECTION 10), IN NO EVENT WILL EITHER PARTY OR ITS INDEMNITEES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES OR LOST REVENUE, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, REPUTATION OR OPPORTUNITY, OR LOST ANTICIPATED BUSINESS (EVEN IF A PARTY HAS BEEN ADVISED OF OR COULD HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS TOS, AN ORDER FORM REFERING TO THIS TOS, OR THE SERVICES REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY.
11.2 Limitation of Liability. EXCLUDING A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (SECTION 8) OR A PARTY’S INDEMNIFICATION OBLIGATIONS (SECTION 10), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, A PARTY’S AGGREGATE AND TOTAL LIABILITY FOR ANY AND ALL LOSSES ASSOCIATED WITH ANY CLAIM OR ACTION RELATED TO, IN CONNECTION WITH, OR ARISING UNDER THIS TOS, AN ORDER FORM, OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO NUMERACLE IN CONNECTION WITH THE SERVICES UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
12.1 Dispute Resolution. This ToS and all Order Forms referencing this ToS are governed by the laws of the Commonwealth of Virginia, without regard to its conflicts of law provisions. Either Party shall institute any legal suit, action, or proceeding arising out of or relating to this ToS or any Order Form in the federal or state courts in each case located in or serving Fairfax County, Virginia, and the Parties hereby irrevocably and unconditionally consent to the jurisdiction thereof.
12.2 Attorneys Fees. In the event that any suit or action is instituted under or in relation to this ToS or any Order Form, including without limitation, to enforce any provision in this ToS or any Order Form, the prevailing Party in such dispute shall be entitled to recover from the losing Party all reasonable fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this ToS or any Order Form, including without limitation, such reasonable fees and expenses of attorneys and accountants, and costs and expenses of appeals.
12.3 Class Action Waiver. BY USING NUMERACLE’S SERVICES AND AGREEING TO THESE TERMS, CLIENT HEREBY WILLINGLY, EXPRESSLY, AND KNOWINGLY WAIVES ALL RIGHT TO BRING OR PARTICIPATE IN ANY CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THIS TOS OR ORDER FORM REFERING TO THIS TOS.
12.4 Assignment. Neither Party may assign or transfer this Agreement or any Order Form or any of Client’s rights or obligations hereunder or thereunder without the other Party’s prior written consent of its duly authorized representative. However, upon written notice to the other Party, either Party may assign this Agreement and all Order Forms to the surviving entity in a merger or consolidation in which Party participates or to a purchaser of all or substantially all of Party’s assets.
12.5 Waiver. No term or provision of this Agreement or any Order Form will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by a duly authorized representative on behalf of the Party against whom it is asserted. Any consent by any Party to, or waiver of, a breach of another, whether express or implied, will not constitute consent to, waiver of, or excuse for any different or subsequent breach of this ToS or any Order Form by such Party.
12.6 Severability. If any of the provisions of this ToS or Order Form are declared to be invalid or unenforceable by a court of competent jurisdiction, such provisions will be ineffective to the extent of such invalidity or unenforceability while the other provisions will remain in full force and effect.
12.7 Data Privacy. Client understands, acknowledges, and agrees that the operation of certain features of the Services may require or involve the provision, use, and dissemination of various items of personally identifiable information, including without limitation personal contact information. Please refer to Numeracle’s Privacy Policy, available at https://www.numeracle.com/privacy-policy (as updated from time to time), for a summary of Numeracle’s policies and use practices regarding personally identifiable information.
12.8 Security and Compliance. Numeracle reserves the right to view, monitor, and record Client’s activity on the Services without notice or permission from Client. Numeracle’s provision of the Services is subject to existing laws and legal process, and nothing contained herein shall restrict or reduce Numeracle’s ability to comply with governmental, court, and law enforcement requests or requirements involving Client’s use of the Service or information provided to or gathered by Numeracle with respect to such use.
12.9 Export Compliance. Client shall comply with all export control and anti-boycott laws and regulations of the United States, including without limitation, no disclosure or any technical information related to the Services to prohibited persons or destinations in violation of United States law. Client acknowledges and agrees that neither the Services nor any technical data related thereto nor the direct product thereof are intended: (a) to be used for any purpose prohibited by the applicable export laws or regulations; or (b) to be made available or exported, either directly or indirectly, to any country to which such shipment is prohibited by the applicable export laws or regulations.
12.10 Headings and Draftsmanship. The section headings in this ToS and Order Forms are for reference and convenience only and do not explain, modify, interpret, or expand the provisions of this ToS or Order Form. The language of this ToS and all Order Forms shall be construed according to its fair meaning and shall not be construed for or against any Party as a result of the source of its draftsmanship.
12.11 Entire Agreement and Amendment. This Agreement, all Order Forms, and any Exhibits thereto that are all incorporated herein by this reference, set forth the entire understanding between the Parties with respect to the subject matter thereof. This ToS and Order Forms referencing this ToS supersede all prior or contemporaneous representations, discussion, negotiations, letters, proposals, agreements, and understandings between the Parties with respect to the subject matter, whether written or oral. Client may not amend this ToS or any Order Form via a purchase order or similar document provided by Client, and any terms and conditions contained in such purchase order or similar document shall be void and of no effect, regardless of any failure of Numeracle to object to such terms, provisions, or conditions. There are no representations, agreements, arrangements, nor understandings, oral or written, between the Parties relating to the subject matter of this ToS or Order Forms that are not fully expressed herein or therein. This ToS and Order Forms may only be amended or modified by a written instrument executed by duly authorized representatives of both Parties.
12.12 Force Majeure. Numeracle will be excused from failures or delays in delivery or performance hereunder, if such failure or delay: (a) is attributable to causes out of its reasonable control such as weather, acts of God, natural disaster, war, terrorist attack, disease, epidemic/pandemic, criminal activity, riot, civil unrest, strike, access to services by Numeracle’s service providers, or utility failure; and (b) such failure or delay could not have been prevented or circumvented by Numeracle through the use of alternate sources, workaround plans, or other reasonable precautions. In the event of any such delay, the time of delivery or performance will be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the Parties).
12.13 Independent Contractors. The Parties relationship is one of independent contractors, and neither Party is an agent or partner of the other Party. Neither Party will have and will not represent to any third-party that it has any authority to act on behalf of the other Party except as specifically provided in any Letter of Authorization pursuant to an Order Form. Nothing in this ToS or any Order Form will be construed to make either Party, and each Party agrees that it is not, an agent, employee, partner, franchisee, joint venturer or representative of the other Party.
12.14 Notices. All notices required or permitted under this ToS or Order Form shall be in writing directed to the person designated in the Order Form and shall be deemed effective: (a) upon personal delivery; (b) upon deposit in the United States Post Office (by registered or certified mail) or by a nationally recognized overnight courier, postage prepaid, addressed to the other Party at the address in the Order Form; or (c) if sent by email to the address shown in the Order Form.
12.15 Electronic Communications. Numeracle may send emails or other electronic messages to Client concerning Client’s use of the Services, including without limitation by providing alerts or notifications within the Services. Client consents to receive such electronic communications and Client agrees that all such electronic communications constitute valid legal notices satisfying any requirement that such notices be in writing.
12.16 Changes to ToS. Numeracle reserves the right to change the terms and conditions of this ToS by posting a revised set of terms or mailing and/or emailing notice to Client (or such other method as may be required by applicable law). Client’s continued use of the Services following any announced change will be deemed as conclusive acceptance of any change to the ToS.
