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Terms & Conditions

Master Services Agreement - GYBE Inc.

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This Master Services Agreement (collectively with all Orders, the “Agreement”) is entered into as of the last dated signature in the applicable Order (as defined herein) (the “Effective Date”) by and between GYBE Inc., a Washington corporation, with a place of business at 10400 NE 4th St., Ste 500, Bellevue WA 98004-5175 (“Company”), and the customer identified in the Order (“Customer”).  Customer and Company are referred to individually as a “Party” and collectively as the “Parties.” By signing an Order, Customer expressly agrees to be bound by the terms and conditions set forth herein.

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  1.  DEFINITIONS.  Capitalized terms defined in this Section 1 or as otherwise set forth throughout this Agreement will have the meanings set forth herein.  

    1. “Admin Console” if applicable, means the online console(s) and tool(s) provided by Company to Customer for administering the Services.

    2. “Administrators” if applicable, mean the Customer-designated technical personnel who administer the Services on Customer’s behalf.

    3. “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party.  For the purposes of this definition, “control” and its cognates mean direct or indirect ownership of more than 50% of the voting interests of the applicable Party.

    4. “Claim” means any claim, action, proceeding, or suit.

    5. “Customer Content” means any material, such as audio, video, text, or images, that is imported into the Services by or on behalf of Customer in connection with Customer’s use of the Services.

    6. “Customer Data” means any data that is imported by or on behalf of Customer into the Services from Customer’s internal data stores or other third-party data providers in connection with Customer’s use of the Services.

    7. “Deployment Date” means the date (after the Effective Date) that Company delivers the digital workflows set forth in the SOW to Customer. 

    8. “Equipment” means equipment or devices supplied by Company to Customer in connection with the Offerings, as identified in the Order.

    9. “Law” means all laws and regulations, including state and federal laws and regulations, binding orders, and ordinances, applicable to such Party in its performance of this Agreement, including privacy laws and regulations governing such Party and its data privacy practices.

    10. “Location” means each Customer manufacturing or operations facility, in each case, managed or operated by or on behalf of Customer.

    11. “Offerings” means the Services and any Professional Services.

    12. “Order” means any ordering document for Offerings (that either references this Agreement or to which this Agreement is attached) that is accepted and executed by Company and executed by the customer identified in such ordering document.

    13. “Reports” means any graphical or numerical display of Customer Data that contains Company’s proprietary design, look and feel, and is generated by the Services.

    14. “Services” means the services specified in the Order, any Reports, and any Deliverables, excluding Professional Services.

    15. “User” means individuals who are authorized to use the Services under Customer’s account, including employees, contractors, agents of Customer and Customer’s end-users.

  2. COMPANY SERVICES

    1. Access to Services and Reports.  Subject to Customer’s continuing compliance with its obligations set forth in this Agreement and the Service usage limits set forth in the Order, and while an Order under this Agreement remains in effect:  (a) Company will provide access to the Services to:  (i) each User authorized under an applicable Order pursuant to (and subject to such User complying with) this Agreement; and (ii) if applicable, access to the Admin Console for the Administrator(s) to manage Customer’s use of the Services (and each User’s ability to access the Services, if applicable); and, (b) Customer may download and use, solely for its internal business purposes, any reports that are made available to Customer via the Service from time to time; in each case, in accordance with the provisions of this Agreement (including the applicable Order).

    2. Eligibility.  Customer may designate a User as being eligible to access the Services by: (a) providing Company with a monthly report (in a format acceptable to Company) identifying such Users; (b) uploading the User information directly via the Admin Console (if applicable); (c) enabling single sign-on functionality for such User; or (d) such other methods as agreed upon by the Parties.  Customer will provide all notices and obtain all consents as required by Law to share the Customer Data with Company for Company’s processing in accordance with the Agreement.

    3. Professional Services.  Company will use reasonable efforts to perform the professional services (“Professional Services”) specified in each statement of work (each, a “SOW”) or Order to this Agreement.  Company may perform such Professional Services by using its personnel or by retaining contractors to perform such Professional Services.  Any SOW will become effective when signed by both Parties. Each SOW is hereby incorporated into this Agreement by this reference.  Company solely and exclusively owns throughout the world all materials (including software, prototypes, drawings, artwork, documentation and any other deliverables), ideas, designs, techniques, formulas, know-how, inventions (whether or not patentable), improvements, information, creative works and any other works created, conceived, reduced to practice or otherwise developed by or on behalf of Company in the course of or resulting from the provision of Professional Services (including all intellectual property rights therein or thereto) (collectively, “Work Product”).  “Deliverables” means the Work Product that Company delivers to Customer.

    4. Equipment. Subject to Customer’s compliance with the terms and conditions of this Agreement and solely during the Term (defined below), Company may provide certain Equipment to Customer at certain Locations and authorized by Company in writing. Company retains all rights, title, and interests in and to the Equipment; and Customer will hold the Equipment as bailee thereof. Customer will not take any action that encumbers the Equipment with any mortgage, charges, claims, deed of trust, security interest, equitable interest, or other liens or encumbrances (or allows any of the foregoing to exist on the Equipment). Equipment is and will remain personal property regardless of its use or manner of attachment to realty. Customer will not modify (or permit any third party to modify) any Equipment, without first obtaining Company’s prior written consent. In the event of any theft or loss of, or damage (including any damage caused by Customer, or Customer’s or any User’s failure to comply with applicable Equipment guidelines, as provided by Company from time to time) to, any Equipment placed at a Location, Customer will pay Company (a) the straight line depreciated value of the machine based on a 3 year life of such Equipment that is lost or stolen or cannot be reasonably repaired (in Company’s sole discretion); or (b) for all costs, expenses, and fees arising from or related to the repair of Equipment that can be reasonably repaired, in each case (a) and (b), calculated as of the date such Equipment is stolen, lost, damaged or repaired and due and owing upon receipt of the invoice from Company. Upon the termination or expiration of this Agreement, or Company’s termination of a Location, Customer will (and will cause all third parties and all others, including landlords or lessors, to): (a) surrender and make available to Company or its designee the applicable Equipment at the applicable Location(s); (b) permit Company or its designees to enter and access such Location(s), to reclaim and repossess such Equipment; and (c) cooperate with Company’s and its designee’s reclamation and repossession of such Equipment.

  3. PILOT TERMS

    1. Pilot Program.  If an Order includes a pilot period (“Pilot Period”), Company will make the applicable pilot Services identified in such Order available to Customer on a trial basis in accordance with such Order until the earlier of: (a) the expiration or termination date of the Pilot Period; (b) on the date the Customer terminates such Order; or (c) the effective date of the Initial Order Term for such Order, as set forth in the Order. 

    2. Pilot Data.  ANY DATA ENTERED INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING THE PILOT PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES THE APPLICABLE SERVICES IDENTIFIED IN AND IN ACCORDANCE WITH SUCH ORDER BEFORE THE END OF THE PILOT PERIOD. CUSTOMER WILL REVIEW THE APPLICABLE DOCUMENTATION FOR SERVICES DURING THE PILOT PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

    3. Pilot Disclaimers.  NOTWITHSTANDING SECTIONS 10, 11, AND, 12.1, DURING THE PILOT PERIOD THE OFFERINGS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COMPANY WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE OFFERINGS FOR THE PILOT PERIOD, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY‘S LIABILITY WITH RESPECT TO THE OFFERINGS PROVIDED DURING THE PILOT PERIOD WILL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES OR COMPANY’S PROVISION OF PROFESSIONAL SERVICES DURING THE PILOT PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE PILOT PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) OFFERINGS OR  DATA PROVIDED DURING THE PILOT PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11, CUSTOMER WILL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE PILOT PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

  4. CUSTOMER’S OBLIGATIONS

    1. Use and Access Restrictions.  Customer will not:  (a) make the Services available to, or use the Services for the benefit of, anyone other than Company; (b) sublicense, resell, time share, or similarly exploit the Services; (c) reverse engineer, disassemble, reverse compile, decompile, translate, modify, translate, create derivative works of, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services; (d) access or use the Services (including any output) to build a competitive product or service or train any models; (e) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (f) use any automated or programmatic method to extract data or output from the Services; (g) represent that output from the Services was human-generated; or (h) introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to the Services.  Notwithstanding the Service usage limits specified in the Order, Company may establish, limit, revoke, and otherwise change credit and credit User, service capacity, usage limits and terms at any time, in Company’s sole discretion, with or without notice to Customer.

    2. Account Information.  Customer will (and will cause all Users to) protect the usernames and passwords used to access and use the Services (“Account Information”) from unauthorized access, use, or disclosure.  Company is responsible for all activities in the Services performed using such Account Information.  Company’s responsibilities do not extend to the internal management or administration of the Services for Customer.  To the extent applicable, Customer may use the Admin Console to specify one or more Administrators who will have the right to access the Admin Console and to manage the Services.  

    3. Consents.  Customer represents, warrants, and covenants that it has obtained all rights and appropriate consents (and provided proper notices), in each case, required by Law or any agreement with a third-party, to provide the Customer Data to Company for Company’s provision of the Offerings and processing of such Customer Data in accordance with this Agreement, including all data subject consents.

    4. Third-Party Providers.  Customer is responsible for complying with any applicable terms and conditions of any third-party data, products, services, and platforms used by Customer in conjunction with the Services.

  5. COMPENSATION & PAYMENT

    1. Fees.  Customer will pay Company all costs, fees, expenses, and other charges specified in each Order or SOW, or on or through the Services (collectively, “Fees”) within thirty (30) days of the date of the invoice issued by Company, unless a different period is specified in the applicable Order.  Payment obligations are non-cancelable, and Fees paid to Company are non-refundable.  The Fees do not include taxes.  Customer will pay all applicable taxes, levies, and duties associated with its purchase under this Agreement.  If the Order indicates that the Order will continue beyond the expiration of the Pilot Period and Customer does not terminate the Order during the Pilot Period pursuant to its rights in Section 8.3 of this Agreement, following the Pilot Period and upon the commencement of an Initial Order Term (defined below), Company may charge Customer its then-current Fees for any Offering(s) set forth in the applicable Order. Following the Initial Order Term, Company may on an annual basis change the Fees charged under an Order by providing Customer with at least thirty (30) days prior notice thereof. 

    2. Late Payment.  Any amount due under this Agreement that remains unpaid after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of one and one-half percent (1.5%) per month or the maximum rate permitted by Law, calculated from the date such amount was due until the date that payment is received.  Customer will pay Company such interest and all costs and expenses of collection (including attorneys’ fees) incurred by Company for collecting any such past due amounts.

  6. INTELLECTUAL PROPERTY; FEEDBACK

    1. Company IP.  As between Company and Customer, Company owns all right, title, and interest, including all intellectual property rights, in and to the Offerings, Work Product, usage and other information collected through engagement with the Services (excluding any Customer Data), and any other information, reports, program, or marketing materials provided by Company to Customer, including via the Services (collectively, “Company IP”).  All rights in the Company IP not expressly granted to Customer in this Agreement are reserved by Company. Company may develop, modify, improve, support, customize, and operate its Offerings based on Customer’s or its Users’ access or use, as applicable, of any Offerings in such a manner that neither Customer nor any individual can be identified from such information.

    2. Feedback.  Customer and Users may (but is not obligated to) provide Company with suggestions, ideas, enhancement requests, or other feedback (“Feedback”).  If Customer provides any such Feedback to Company, Customer hereby grants Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and otherwise practice such Feedback.

  7. DATA

    1. Customer Data.  Customer owns all Customer Data and Customer Content.  Customer hereby grants Company and its Affiliates a nonexclusive, worldwide, royalty-free license during the Term (defined below) to use and access Customer Data and Customer Content and provide necessary access to third-party service providers acting on its behalf only to:  (a) provide the Offerings and perform Company’s obligations under this Agreement; (b) to prevent or address service or technical problems, or at Customer’s request in connection with customer support matters; or (c) to operate, improve, and support the Offerings.  Customer will provide necessary access to third-party service providers acting on Company’s behalf (such as Amazon Web Services, Azure, Salesforce, and Google Cloud). 

    2. Protection of Customer Data.  Company will maintain reasonable administrative, physical, and technical safeguards to protect Customer Data.  Company may update its security protections from time to time; provided, however, that Company will not update or modify any security protections in a manner that materially decrease its security controls.  

  8. TERM AND TERMINATION

    1. Agreement Term.  Unless terminated earlier as provided in the Agreement, this Agreement commences on the Effective Date and continues until no Orders remain in effect for ninety (90) consecutive days (the “Term”).

    2. Order Term.  Unless provided otherwise in an Order, each Order will remain in effect for the initial term specified in such Order (or, if no such initial term is specified, for one year) (“Initial Order Term”) and will automatically renew for consecutive one-year terms after the Initial Order Term (each a “Renewal Order Term”) unless a Party provides written notice of non-renewal at least thirty (30) days prior to any renewal of each such Order.  All User subscriptions under an applicable Order will terminate when the Order terminates or expires.  For clarity, a new Order does not constitute a renewal of any prior Order. 

    3. Termination for Convenience. Company may terminate this Agreement for any reason, with or without cause, upon providing Customer thirty (30) days’ prior written notice. Strictly during the period of time beginning upon the Effective Date and until the end of the Pilot Period, Customer may terminate this Agreement for any reason, with or without cause, upon providing Company thirty (30) days’ prior written notice.

    4. Termination for Cause.  A Party may terminate this Agreement (including any Orders) if the other Party materially breaches this Agreement, and such breach is not cured within thirty (30) days after the non-breaching Party has provided the breaching Party written notice thereof.

    5. Effects of Termination.  Upon the termination or expiration of this Agreement, the Offerings and all of Customer’s rights under this Agreement (including all Orders) will immediately terminate.  Company will destroy or anonymize all Customer Data, in the manner and on the schedule as required by Law, and in accordance with Company’s then-current data deletion practices.  Termination or expiration will not relieve either Party of obligations incurred prior to the effective date of the termination or expiration.  The following Sections survive the expiration or termination of this Agreement:  1, 3.3, 5 (with respect to amounts accrued prior to expiration or termination), 6, 7.1, 8.5, 9, 10.3, 11, 12, and 13.

    6. Suspension.  Company may suspend, disable, or terminate access to or the provision of all or any part of the Offerings:  (a) under an Order immediately when the Order terminates or expires; (b) under all Orders with thirty (30) days’ written notice, if Customer fails to make any payments when due; and Fees will continue to accrue during any such suspension; or (c) under all Orders if Customer breaches this Agreement, and such breach is not cured within thirty (30) days after Company has provided Customer written notice thereof.

  9. CONFIDENTIAL INFORMATION

    1. Definition of Confidential Information.  As used herein, “Confidential Information” means any nonpublic or proprietary information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally or in writing, that:  (a) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; or (b) based upon the facts and circumstances of the disclosure, information that a reasonable person would consider confidential.  For clarity, Customer Data is the Confidential Information of Customer, and the terms of this Agreement, and all pricing information under this Agreement or an applicable Order, is Confidential Information of Company.  Confidential Information does not include any information that:  (i) was publicly available prior to the time of disclosure by the Discloser; (ii) becomes publicly available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient; (iii) is already in the lawful possession of the Recipient at the time of disclosure; (iv) is obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.

    2. Protection of Confidential Information.  Recipient will:  (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) only disclose Confidential Information of the Discloser to those of its and its Affiliates’ employees, contractors, and agents (“Representative(s)”) who are bound in writing by confidentiality obligations at least as protective as this Agreement and need such access for purposes consistent with this Agreement.  If any Representative discloses or uses Confidential Information other than as authorized in this Agreement, Recipient will be liable to Discloser for such disclosure or use to the same extent that Recipient would have been liable had Recipient performed such unauthorized disclosure or use.

    3. Compelled Access or Disclosure.  Notwithstanding any language to the contrary, Recipient may disclose Confidential Information if it is compelled by Law to do so, if Recipient gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the Discloser’s cost, if Discloser wishes to contest such disclosure.

  10. WARRANTY; DISCLAIMER

    1. Warranty.  Each Party represents and warrants that: (a) it has full power and authority to enter into this Agreement; and (b) the person signing this Agreement on its behalf has the authority to do so.

    2. Compliance.  In the performance of this Agreement, each Party will comply with the Law applicable to it.

    3. Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE OFFERINGS AND ANY OTHER INFORMATION (INCLUDING THE REPORTS) ARE PROVIDED BY COMPANY “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND; AND, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER (INCLUDING WITH RESPECT TO THE USE OF, OR THE RESULTS FROM THE USE OF, THE OFFERINGS), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, SATISFACTORY QUALITY, WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE, OR THAT THE OFFERINGS AND ANY OTHER INFORMATION PROVIDED BY COMPANY ARE OR WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED.  CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY TO ANY PERSON.  

  11. LIMITATION OF LIABILITY

    1. Limitation of Liability.  EXCEPT AS SET FORTH IN SECTION 11.2, TO THE GREATEST EXTENT PERMITTED BY LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE:  (A) NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR PERTAINING TO THIS AGREEMENT SUFFERED BY CUSTOMER OR OTHERS (INCLUDING ANY LOST PROFITS, LOST REVENUE OR LOSS OF GOODWILL); AND (B) EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR PERTAINING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.

    2. Exceptions.  THE LIMITATIONS SET FORTH IN SECTION 11.1 DO NOT APPLY TO:  (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12; OR (B) DAMAGES ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF COMPANY IP OR CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE UNDER THIS AGREEMENT.

    3. Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE AGREED UPON COMPENSATION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

  12. INDEMNIFICATION

    1. Company Indemnification.  Company will defend Customer and its directors, officers, and employees against any third-party Claim and will pay for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement by Company (such agreement not to be unreasonably, withheld, conditioned, or delayed), to the extent arising from the actual or alleged infringement of such third party’s intellectual property rights by the Services.  Company will have no indemnification obligations arising from this Section 12.1, to the extent such Claim arises from:  (a) the use or combination of the Services with any hardware, software, products, processes, data, or other materials not provided by Company, including Customer’s own systems and data; (b) modification or alteration of the Services by anyone other than Company;, (c) Customer’s or any User’s misuse of the Services or use of the Services in excess of the rights granted in the Agreement; (d) the Offerings compliance with or modifications made to the Offerings by Company pursuant to designs, instructions, or specifications provided by or on behalf of Customer. The remedies in this Section 12.1 are Customer’s sole and exclusive remedies and Company’s sole liability regarding the subject matter giving rise to any Claim in this Section 12.1.

    2. Customer Indemnification.  Customer will defend Company and its directors, officers, and employees against any third-party Claim and will pay for the resulting costs and damages finally awarded against Company to such third party by a court of competent jurisdiction or agreed to in settlement by Customer (such agreement not to be unreasonably, withheld, conditioned, or delayed), arising from any allegation that:  (a) the Customer Data, Customer Content, or other content or information provided by Customer to Company infringes, misappropriates, or violates the rights of a third party; or (b) Customer’s use of the Services in violation of Law.

    3. Indemnity Obligations.  The indemnifying Party’s (the “Indemnitor”) obligations under this Section 12 are conditioned upon the person(s) seeking indemnification under this Section 12 (the “Indemnitee(s)”):  (a) promptly notifying the Indemnitor in writing of the Claim (so as to avoid prejudicing the Indemnitor); (b) granting the Indemnitor sole control of the defense and settlement of the Claim provided that any such settlement does not bind any Indemnitee to pay any monetary amounts or admit to any wrongdoing; and, (c) providing the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the Claim.  

  13. GENERAL

    1. Independent Contractors.  The Parties are independent contractors; and nothing contained in this Agreement gives either Party the power to act as an agent of the other or to direct or control the day-to-day activities of the other.

    2. Assignment.  Customer may not assign its rights or delegate its obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Company.  Any amalgamation or merger of Customer with any third party, or the purchase of all or substantially all of the assets or equity of Customer, will be deemed an assignment requiring consent.  Any attempted transfer in violation of this Section is void.  Company may, without the prior written consent of Customer, assign or delegate all or any part of its obligations under this Agreement.

    3. Notices.  Any notice must be in writing and will be effective upon delivery as follows:  (a) if to Customer, when (i) delivered via registered mail, return receipt requested, or overnight delivery service to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to Company, when sent via email to [sales@gybe.cloud], with a duplicate copy sent via registered mail, return receipt requested, to the address identified in the preamble of this Agreement.  Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section.

    4. Force Majeure.  Neither Party will be liable to the other Party for the nonperformance of any obligation under this Agreement (other than any payment obligation) arising from any cause beyond such Party’s or its suppliers’ reasonable control, regardless of whether such cause is foreseeable, including any:  (a) act of God; (b) flood, fire, explosion, earthquake, or natural disaster; (c) act of terrorism, war, revolution, invasion, riot, or other civil or military disturbances or acts of public enemies; (d) act, regulation, order, or Law of any government, civil or military authority, or any injunction of any nature; (e) embargo, blockade, tariff, or other trade restriction in effect on or after the Effective Date; (f) national or regional emergency; (g) epidemic, pandemic, or other contagion, including COVID-19; (h) strike, lockout, labor dispute, stoppage or slowdown, or other industrial disturbance; (i) casualty or accident; (j) denial of service attacks and other malicious conduct; or (k) inability to procure, or any interruption, loss, malfunction, or shortage of, any supplies, services, products, equipment, transportation, utilities, communications, or computer software, hardware, or services.

    5. Governing Law.  This Agreement and all proceedings arising hereunder will be governed by and construed in accordance with the laws of the State of California without reference to its principles of conflicts of law.  The Parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement.

    6. Arbitration.  Any dispute arising between the Parties out of or in connection with this Agreement will be finally resolved by arbitration conducted by one arbitrator (who is a licensed attorney) in San Francisco County, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association.  The arbitrator’s award will be final and binding and may be entered in any court having jurisdiction thereof.  Each Party will bear its own costs and attorneys’ fees and will share equally in the fees and expenses of the arbitrator.  The arbitration will be conducted in English, the governing language of this Agreement.  Nothing contained herein will prevent a Party from obtaining injunctive relief from any court of competent jurisdiction.

    7. Severability.  Each provision contained in this Agreement constitutes a separate and distinct provision severable from all other provisions.  If any provision (or any part thereof) is unenforceable under or prohibited by any present or future Law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such Law, while preserving to the maximum extent possible the intent of the original provision.  Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and all the remaining provisions of this Agreement will remain unimpaired.

    8. No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.

    9. Publicity.  Neither Party will issue any press releases or make any social media posts referencing the other Party except with the prior written permission of the other Party or as required by Law.  Without limiting the foregoing, Company may use Customer’s name, logo, or marks for the purpose of marketing the Offerings without prior approval.

    10. U.S. Government Customers.  The Services use a technology platform that is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government customers and/or users acquire such software and documentation with only those rights set forth herein.  If a government agency has a need for rights not conveyed under these terms, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

    11. Amendment and Waiver.  No modification, amendment, or waiver of any provision of this Agreement will be effective unless it exists in writing and is signed by the Party against whom the modification, amendment, or waiver is to be asserted.  The delay or failure of a Party at any time to require performance of any obligations of the other Party will not be deemed to be a waiver and will not affect its right to enforce any provision of this Agreement at a subsequent time.  One waiver will not imply or be construed to be a waiver of any future breach.

    12. Entire Agreement.  This Agreement, along with each applicable Order, SOW, constitutes the complete and exclusive statement of all mutual understandings between Company and Customer with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written.  Nothing contained in any purchase order, acknowledgment, or invoice will in any way modify or add to the terms or conditions of this Agreement; provided that if a conflict exists between the Agreement, an Order, or an SOW, the conflict will be resolved by giving precedence in the following order: (a) the Agreement; (b) the Order; and (c) the SOW. 

    13. Interpretation.  In this Agreement:  (a) the headings are for convenience only and will not affect the meaning or interpretation of this Agreement; (b) the words “herein,” “hereunder,” “hereby,” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph, or Section where they appear); (c) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise; (d) “or” is used in the sense of “and/or”; (e) “any” is used in the sense of “any or all”; and (f) the words “include,” “includes,” or “including” are to be construed as if they are immediately followed by the words “without limitation.”  If an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof.

    14. Counterparts.  This Agreement (including any Order) may be executed in two or more counterparts, each of which will be deemed an original, but which together constitute one and the same instrument.  The execution of this Agreement may be evidenced by way of a facsimile, portable document format (.pdf) transmission, or electronic production or reproduction, photostatic or otherwise, of such Party’s or person’s signature, and such portable document format (.pdf), or electronic production or reproduction signature is deemed to constitute the original signature of such Party or person.

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