1. Publicity. Customer agrees that TPSynergy may include the name, logo, and success stories of Customer on TPSynergy’s website, press releases, promotional and sales literature, and advertising materials.
2. Independent Contractor. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
3. Export. Customer agrees not to export or re-export any software included within the Service, either directly or indirectly, without TPSynergy’s written consent and any required license from the appropriate governmental agency.
4. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, hacking, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes, or governmental demands or restrictions.
5. Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Any assignment in contravention of this subsection shall be void.
6. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Texas, U.S.A. (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in Travis County, Texas, and the parties agree to submit to the exclusive personal jurisdiction of such courts. If Customer is located outside of the United States, and except for any claims for temporary or permanent injunctive relief, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”) in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The appointing authority shall be the American Arbitration Association. The place of arbitration shall be Austin, Texas. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
7. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer of the Service and any documentation, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein this Agreement. All other use is prohibited. Further, the Service and any documentation was developed at TPSynergy’s private expense and is commercial in nature. By using, receiving, or downloading the Service and any documentation, the Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
8. Entire Agreement. This Agreement, including the Order Form, constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. From time to time the parties may enter into addenda or supplemental terms regarding particular Service offerings. Any such addenda, supplements or other amendments to this Agreement shall only be valid if in writing and signed by an authorized representative of each party, or agreed by a Customer representative via a click-to-accept mechanism presented upon log-in to the Service.
9. Miscellaneous. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. Other than the Order Form nothing contained in any purchase order or other Customer document shall in any way modify this Agreement or add any additional terms or conditions. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.