Eulerity INC. MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) APPLIES TO ALL ORDERS FOR Eulerity PRODUCTS, INCLUDING ANY SOFTWARE EMBEDDED IN Eulerity PRODUCTS, ISSUED BY Eulerity INC. (“Eulerity”) TO CUSTOMER. Eulerity’S ACCEPTANCE OF ANY CUSTOMER ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY CUSTOMER ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND Eulerity WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER Eulerity’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
1.1 “Eulerity Software” means any software platform access provided by Eulerity that is identified on an Order Form.
1.2 “Eulerity Products” means, collectively, the Eulerity Software and the Eulerity Subscriptions.
1.3 “Eulerity Subscriptions” means those subscriptions to Eulerity services identified on an Order Form.
2. Use OF Eulerity PRODUCTS
2.1 Subject to the terms and conditions of this Agreement, Eulerity hereby provides to Customer the Eulerity Software ordered pursuant to any Order Form for the term stated in the applicable Order Form. The Eulerity Software is provided to Customer solely for use by Customer in connection with Eulerity Subscriptions. Customer will not use the Eulerity Software or any purpose other than use in connection with the Eulerity Subscriptions.
2.2 Eulerity has title to the Eulerity Software at all times. Customer acquires no ownership, title, property, right, equity, or interest in the Eulerity Software other than its subscription interest solely as a user subject to all the terms and conditions of this Agreement.
2.3 If Customer initiates an order for Eulerity Products with a written order form or other written request submitted to Eulerity, such order must set forth the details for the order of Eulerity Products. Orders must comply with the order lead-time requirements established by Eulerity. Eulerity reserves the right to accept or reject orders, in whole or in part, in its sole discretion, or to cancel any order previously accepted if Eulerity determines that Customer is in default or otherwise. No partial acceptance of an order will constitute the acceptance of the entire order. The terms of this Agreement will govern the order. The terms of a Customer order form or any other document that conflict with, or in any way purport to amend, any of the terms of this Agreement are hereby specifically objected to and will be of no force or effect.
2.4 Subscriptions. Subject to the terms and conditions of this Agreement, solely during any paid Eulerity Subscriptions agreed in one or more Order Forms, Eulerity grants to Customer a limited, non-exclusive, non-transferable right during the term of the applicable Eulerity Subscription to access and use the Eulerity Software solely in connection with Customer’s internal business operations.
2.5 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, create derivative works of, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or underlying ideas or algorithms of any portion of any Eulerity Products (b) modify or attempt to service or repair the Eulerity Software; nor (c) circumvent or disable any technological features or measures in the Eulerity Products, including security features. Customer shall take reasonable measures to prevent the Eulerity Products from being stolen or accessed without authorization and to prevent third parties from carrying out the restricted activities set forth in this Section are available at law or in equity, including seeking damages, specific performance or an injunction.
2.6 Changes to Agreement. From time to time Eulerity may modify, amend, or otherwise alter the terms of this Agreement. Eulerity reserves the right to make any and all such changes. Eulerity will strive to provide advance notice of any change that materially alters the terms of this Agreement.
2.7 Service Level Agreement. Eulerity will use commercially reasonable efforts to provide Customer with the services during the applicable term set forth in an Order Form and in accordance with the service levels set forth by Eulerity.
2.8 Support Policy. Eulerity will use commercially reasonable efforts to provide Customer with the services during the applicable term set forth in an Order Form and in accordance with the support levels set forth in the Eulerity.
3.1 Payment. The order form signed by Eulerity (“Order Form”) will reflect the total order made by Customer. The same billing terms will apply to all Eulerity Products reflected on an individual Order Form. Unless otherwise agreed by Eulerity, Customer must pay all fees and other amounts specified on an Order Form prior to shipment by wire transfer or other payment method agreed upon by the parties (“Payment Method”).
3.2 Eulerity Subscription Renewals. ALL Eulerity SUBSCRIPTIONS RENEW AUTOMATICALLY AT THE END OF THE FULL SUBSCRIPTION PERIOD SPECIFIED ON THE APPLICABLE ORDER FORM. ALL RENEWAL SUBSCRIPTION PERIODS WILL BE FOR A PERIOD EQUAL TO THE INITIAL SUBSCRIPTION PERIOD THAT OCCURRED PRIOR TO RENEWAL. UPON RENEWAL OF A Eulerity SUBSCRIPTION, CUSTOMER’S PAYMENT METHOD WILL BE CHARGED IN ACCORDANCE WITH Eulerity’S THEN-CURRENT PRICING FOR THE Eulerity PRODUCTS ORDERED IN THE APPLICABLE ORDER FORM (UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING), AND CUSTOMER HEREBY AGREES TO SUCH RECURRING CHARGES UPON RENEWAL. IF CUSTOMER DECIDES TO CANCELS A Eulerity SUBSCRIPTION PRIOR TO THE END OF THE APPLICABLE SUBSCRIPTION PERIOD AS DESCRIBED IN THE ORDER FORM, CUSTOMER WILL NOT RECEIVE A REFUND OR CREDIT FOR THE REMAINDER OF THE SUBSCRIPTION PERIOD.
3.3 Currency and Late Payment. Any amount not paid when due will be subject to finance charges equal to the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by Eulerity to collect any amount that is not paid when due. Eulerity may accept any payment in any amount without prejudice to Eulerity’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. If amounts remain due following 30 days’ notice of required payment, Customer will be in material breach of this Agreement. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
3.4 Taxes. Other than federal and state net income taxes imposed on Eulerity by the United States, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Eulerity after all such taxes are paid are equal to the amounts which Eulerity would have been entitled to in accordance with this Agreement as if the taxes did not exist.
3.5 Solvency. Customer warrants to Eulerity that it is (and will be) financially solvent on the date on which it places each order for Eulerity Products and expects to be solvent on the date of delivery. Eulerity reserves the right, in its discretion, to suspend or cease performance, or to change the credit terms provided herein, when in Eulerity’s opinion, the financial condition or previous payment record of Customer so warrants. Eulerity may enforce its rights and remedies under this Section 3.5 without prior notice or demand.
4. TERM AND TERMINATION
4.1 Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
4.2 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Eulerity or Customer. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
4.3 Effects of Termination. The termination or expiration of this Agreement will not relieve Customer of (a) the obligation to pay any fees that are due to Eulerity under this Agreement and (b) Customer’s obligation to indemnify Eulerity as specified in this Agreement.
5. PROPRIETARY RIGHTS AND NOTICES
5.1 Proprietary Rights. Eulerity and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Eulerity Products. Customer will not act to jeopardize, limit, or interfere in any manner with Eulerity’s ownership of and rights with respect to the Eulerity Products. Customer will have only those rights in or to the Eulerity Products and documentation granted to it pursuant to this Agreement.
5.2 Customer Data. Customer will own all right, title, and interest in and to any data collected by Eulerity and used by Customer, including any such data processed in connection with Eulerity Subscriptions (“Customer Data”). Customer hereby grants to Eulerity a nonexclusive, worldwide, royalty-free, fully paid right and license to the Customer Data for the term of any Eulerity Subscriptions to the extent necessary for Eulerity to provide the services in connection with the Eulerity Subscriptions. Customer hereby grants to Eulerity a nonexclusive, worldwide, perpetual, royalty-free, fully paid right and license to the Customer Data (i) for Eulerity’s internal use only for research and development purposes and to improve Eulerity’s products and services, and (ii) in aggregate, anonymized format, so long as Eulerity does not disclose Customer as the source of the data.
5.3 Proprietary Rights Notices. Customer and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Eulerity Products or related documentation delivered by Eulerity.
5.4 Third Party Copyright Notices. The Eulerity Products include third-party code licensed to Eulerity for use and redistribution under opensource licenses (“Third Party Software”). The terms of certain open-source licenses may be applicable to your use of the Eulerity Products, as set forth in the applicable open-source license. A list of disclosures and disclaimers in connection with Eulerity’s incorporation of certain open-source licensed software into the Eulerity Products is provided upon request.
6. WARRANTY DISCLAIMER OTHER THAN AS SET FORTH IN THIS AGREEMENT, Eulerity MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. Eulerity EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. Eulerity DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE Eulerity PRODUCTS OR AGAINST INFRINGEMENT. Eulerity DOES NOT WARRANT THAT THE Eulerity PRODUCTS ARE ERROR FREE OR THAT OPERATION OF THE Eulerity PRODUCTS WILL BE SECURE OR UNINTERRUPTED. Eulerity EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON A CUSTOMER’S USE OF THE Eulerity PRODUCTS. Eulerity PRODUCTS ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE Eulerity PRODUCTS COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. Eulerity RECOMMENDS AGAINST, AND DISCLAIMS ANY LIABILITY FOR, USE OF THE Eulerity PRODUCTS IN ANY SUCH MANNER.
7. INFRINGEMENT INDEMNIFICATION
7.1 Defense of Claims. Eulerity will, at its option and expense, defend Customer and its officers, employees, directors, agents, and representatives (“Customer Indemnified Parties”) from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against a Customer Indemnified Party alleging that Customer’s use of the Eulerity Product (excluding Third Party Software) infringes or misappropriates any United States patent, copyright, trade secret, trademark, or other intellectual property right if: (a) the Customer Indemnified Party gives Eulerity prompt written notice of the Claim; (b) Eulerity has full and complete control over the defense and settlement of such Claim; (c) the Customer Indemnified Parties provide assistance, at Eulerity’s expense as specified in Section
7.2, in connection with the defense and settlement of such Claim as Eulerity may reasonably request; and (d) the Customer Indemnified Parties comply with any settlement or court order made in connection with such Claim (e.g., relating to the future use, sale, or distribution of any infringing Eulerity Products). The Customer Indemnified Parties will not defend or settle any such Claim without Eulerity’s prior written consent. The applicable Customer Indemnified Party shall have the right to participate in the defense of such Claim at its own expense and with counsel of its own choosing, but Eulerity will have sole control over the defense and settlement of the Claim. 7.2 Indemnification. Eulerity will indemnify the Customer Indemnified Parties against and pay (a) all damages, costs, and attorneys’ fees finally awarded against a Customer Indemnified Party in any Claim under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such Claim, including assistance provided under Section 7.1(c) (other than attorneys’ fees and costs incurred without Eulerity’s consent after Eulerity has accepted defense of such claim); and, (c) if any Claim arising under Section 7.1 is settled, all amounts to be paid to any third party in settlement of any such Claim (as agreed to by Eulerity).
7.3 Mitigation. If Customer’s or their respective agents’ use, sale, or distribution of a Eulerity Product is, or in Eulerity’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 7.1, then Eulerity will either: (a) procure the continuing right of Customer to use the Eulerity Product; (b) replace or modify the Eulerity Product in a functionally equivalent manner while maintaining the same form, fit, and function so that it no longer infringes; or if, despite its commercially reasonable efforts, Eulerity is unable to do either (a) or (b), Eulerity will (c) terminate Customer’s rights to the Eulerity Products under this Agreement.
7.4 Exceptions. Eulerity will have no obligation under this Section 7 for any alleged infringement or misappropriation to the extent that it arises out of or is based upon (a) use of a Eulerity Product in combination with other products, including other Eulerity Products, if such alleged infringement or misappropriation would not have arisen but for such combination; (b) a Eulerity Product that is provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of a Eulerity Product for purposes not intended; (d) use of Eulerity Products after Customer has been notified of any termination of its right to use the Eulerity Products pursuant to Section 7.3(c); (e) Customer’s failure to use a Eulerity Product in accordance with instructions provided by Eulerity, if the alleged infringement or misappropriation would not have occurred but for such failure; or (f) any modification of a Eulerity Product not made or authorized in writing by Eulerity where such alleged infringement or misappropriation would not have occurred absent such modification. Customer is responsible for any costs or damages that result from these actions. 7.5 Exclusive Remedy. This Section 7 states Eulerity’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by a Eulerity Product.
8. CUSTOMER INDEMNIFICATION
8.1 Defense of Claims. Customer will defend Eulerity and its affiliates and their employees, directors, agents, and representatives (“Eulerity Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Customer’s performance or failure to perform under this Agreement, its negligence or willful misconduct, or its breach of this Agreement. The Eulerity Indemnified Parties will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; and (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request.
8.2 Indemnification. Customer will indemnify each of the Eulerity Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and, (c) if any proceeding arising under Section 8.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.
9. CONFIDENTIAL INFORMATION
9.1 “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement. The Eulerity Products and related information will be the Confidential Information of Eulerity. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
9.2 Nondisclosure. During and after the term of this Agreement, each party will: (a) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 9; and (b) protect the other party’s Confidential Information from unauthorized disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
9.3 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing; (b) in confidence, to accountants, banks, and financing sources and their advisors; (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
9.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement. 9.5 Existing Obligations. The obligations in this Section 9 are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.
10. LIMITATION OF LIABILITY
10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, Eulerity WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF Eulerity IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL Eulerity’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO Eulerity UNDER THIS AGREEMENT.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY Eulerity TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11.1 Marketing. Customer agrees Eulerity may publicly use Customer’s logo and name to identify Customer as a customer of Eulerity.
11.2 Export Restrictions. Customer will not resell or otherwise distribute the Eulerity Products in any foreign territory where applicable laws would not provide the protections to Eulerity and the Eulerity Products intended under this Agreement, or where there is a significant risk that the Eulerity Products would fall into the public domain. Customer will not directly or indirectly import, export, or re-export the Eulerity Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.
11.3 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
11.4 Assignability. Customer may not assign its right, duties, or obligations under this Agreement without Eulerity’s prior written consent. As used in this Section 11.4, “assign” includes undergoing any direct or indirect change in control, whether via a merger, acquisition, or sale of all or substantially all assets of Customer. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
11.5 Nonsolicitation. During the term of this Agreement and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of a Eulerity employee or independent contractor without the prior written consent of Eulerity.
11.6 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed. Eulerity may also be contacted at the email address listed in the Order Form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.7 Force Majeure. Eulerity will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Eulerity’s reasonable control, so long as Eulerity uses commercially reasonable efforts to avoid or remove such causes of nonperformance.
11.8 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with Eulerity’s corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make and offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government, including the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Eulerity in obtaining, retaining, or directing any such business.
11.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
11.10 Arbitration. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. The arbitration will be held in New York County, New York, USA. If Customer is an entity incorporated or formed under the state or federal laws of the United States of America, the arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). If Customer is an entity incorporated or formed under the laws of a foreign jurisdiction, the arbitration will be conducted in accordance with the International Chamber of Commerce (“ICC”) Rules of Arbitration. If there is a dispute between the parties under this Agreement, the parties will use good faith efforts to agree upon and appoint one arbitrator no later than 20 days after the notice of arbitration is received from the other party. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA or ICC (as applicable) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA or ICC will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA or ICC (as applicable). The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision will be final and binding on both parties. The costs and expenses of the arbitration will be shared equally by both parties. This Section 11.10 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
11.11 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
11.13 Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits, if any. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Whenever -5- the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
11.14 Entire Agreement. This Agreement, including any applicable Order Forms, is the final and complete expression of the agreement between these parties regarding the Eulerity Products. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of Eulerity has any authority to bind Eulerity with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.