Software as a Service Agreement
By signing and submitting an Order Form for Services from Launch Mobility, Inc., a Delaware Corporation ("Launch Mobility" or “Supplier”), you (“Client”) agree to accept and be bound by the terms of this Software as a Service Agreement (“Agreement”), found at https://www.launchmobility.com/saas during the Services Term of the Order Form, as defined therein. Supplier and Client may be referred to in this Agreement individually as a “Party” and collectively as the “Parties”. The Parties agree as follows:
1. Agreement Definitions. “Client Data” refers to the data provided by Client regarding Client’s operations and Users. “Order Form” refers to the Order Form signed by the Parties that accompanies and incorporates this Agreement, including the Services policies and any other document referenced or incorporated into the Order Form. “Program Documentation” refers to any user materials provided by Supplier as part of the Services. “Services” means, collectively, the Software as a Service provided by Supplier as specified on the applicable Order Form Document attached hereto as Exhibit A and incorporated by reference, and as governed by the Service Level Agreement attached hereto as Exhibit B and incorporated by reference. “Software as a Service” consists of system administration, system management, and system monitoring activities that Supplier performs for Supplier Programs, and includes the right to use the Supplier Programs, support services for such Supplier Programs, as well as any other services provided by Supplier. “Supplier Programs” refers to the software products owned or distributed by Supplier to which Supplier grants Client access as part of the Services, including Program Documentation, and any program updates provided as part of the Services. “Users” shall mean those individuals authorized by Client or on Client’s behalf to use the Services, as defined in the Order Form, including, but not limited to, Drivers and Dealers (as defined in the applicable Order Form).
2. Applicability of Agreement; Ownership.
2.1. This Agreement is valid for the Order Form Document which this Agreement accompanies.
2.2. Client retains all ownership and intellectual property rights in and to Client Data. Supplier or its licensors retain all ownership and intellectual property rights to the Services and Supplier Programs. Unless otherwise agreed to in an applicable Order Form, Supplier retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.
3. Rights Granted. Client has the nonexclusive, non-assignable, royalty free, worldwide, limited right to use the Services solely for Client’s internal business operations and subject to the terms of this Agreement. Client may allow Users to use the Services for this purpose and Client is responsible for such Users’ compliance with this Agreement. The Services are provided as described in, and subject to, the Services policies referenced in the Order Form.
3.1. Provided that Client’s ability to perform the service defined in any applicable Order Form is not adversely affected from Supplier’s actions, Supplier reserves the right, in its reasonable discretion, to make any necessary or useful changes to the Services to: (a) maintain or enhance (i) the quality or delivery of the Services to its customers, (ii) the competitive strength of or market for Services or (iii) the Service’s performance; or (b) to comply with applicable law. Supplier will notify Client of any changes to the Services that it reasonably expects to materially impact Client’s use of the Services. Nothing herein shall be construed as obligating Supplier to notify Client of routine maintenance, enhancements or bug fixes.
3.2. Client acknowledges that Supplier has no delivery obligation and will not ship copies of the Supplier Programs to Client as part of the Services. Client agrees that Client does not acquire under this Agreement any license to use the Supplier Programs specified in the Order Form in excess of the scope and/or duration of the Services. Upon the end of this Agreement or the Services thereunder, Client’s right to access or use the Supplier Programs specified in the Order Form and the Services shall terminate.
4. Restrictions; Client Obligations.
4.1. Client agrees to provide any notices and obtain any consents related to Client’s use of the Services and Supplier’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Client Data. Client expressly permits Supplier (a) to use Client Data to provide the Services and (b) to use the Client Data, in an aggregate and anonymous format (the “Anonymized Data”, which will not be shared with any third parties in an unaggregated manner), to improve the Services. For avoidance of doubt, Client hereby unconditionally and irrevocably grants to Supplier an assignment of all right, title and interest in and to the Anonymized Data, including all intellectual property rights relating thereto. Supplier may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Client Data and/or identify Client’s confidential information or include Client’s name. Supplier retains all intellectual property rights in such information.
4.2. Third party technology that may be appropriate or necessary for use with some Supplier Programs is specified in the Order Form as applicable. Client’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by the third-party supplier and not under this Agreement, unless specified herein or in the applicable Order Form.
4.3. Client may not:
4.3.1. Remove or modify any program markings or any notice of Supplier’s or its licensors’ proprietary rights; 4.3.2. Make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the Services that Client has acquired);
4.3.3. Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Supplier;
4.3.4. Disclose results of any Services or program benchmark tests without Supplier’s prior written consent; or 4.3.5. License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Supplier Programs or materials available, to any third party, other than as expressly permitted under the terms of this Agreement.
4.4. Client agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or knowingly cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise knowingly violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Supplier under this Agreement, Supplier reserves the right to remove or disable access to any material that violates the foregoing restrictions. Supplier shall have no liability to Client in the event that Supplier takes such action. Client agrees to defend and indemnify Supplier against any claim arising out of a violation of Client’s obligations under this section.
4.5. The rights granted to Client under this Agreement are also conditioned on the following:
4.5.1. Except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
4.6 Client agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services by implementing all appropriate technical, administrative and organizational security measures.
5. Warranties, Disclaimers and Exclusive Remedies. Supplier warrants that the Services will perform in a professional manner, in compliance with the Services policies referenced in the Order Form and this Agreement, and in conformance with customary industry practices. If the Services provided to Client for any given month during the Services Term were not performed as warranted, Client must provide written notice to Supplier as specified in the Order Form no later than five business days after the last day of that particular month or within such other period stated in the Order Form.
5.1. FOR ANY BREACH OF THE ABOVE WARRANTIES, CLIENT SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT IMMEDIATELY UPON NOTICE TO SUPPLIER. THIS IS CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND SUPPLIER’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
5.2. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, INCLUDING THE EXHIBITS HERETO, SUPPLIER DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SUPPLIER WILL CORRECT ALL SERVICES ERRORS. CLIENT ACKNOWLEDGES THAT SUPPLIER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET OR CELLULAR NETWORKS,
AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5.3. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Indemnification.
6.1. Supplier agrees to indemnify, defend and hold harmless Client from any and all costs, expenses, damages, liabilities, losses and judgments, including attorneys’ fees and legal expenses (collectively, “Losses”), and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (a) claims, fines or penalties arising out of the failure of Supplier to comply with any laws or regulations; (b) third-party claims arising from Supplier’s breach of its representations or warranties hereunder or under any Order Form; or (c) claims that the Services provided pursuant to this Agreement by Supplier infringes any patents, copyrights or other proprietary rights of any third party. The obligations of Supplier under this Section 6.1 shall not apply to the extent that any infringement claim arises from any (i) modification of the Services that is not made or authorized by Supplier; (ii) combination of the Services with any product or service that is not provided or authorized by Supplier or otherwise anticipated by this Agreement; or (iii) use of the Services in a manner contrary to the applicable Order Form or in any Program Documentation. In addition, Supplier will not indemnify Client for any infringement claim that is based on: (1) a patent that Client was made aware of prior to the effective date of this Agreement or the Order Form (pursuant to a claim, demand, or notice); (2) Client’s actions prior to the effective date of this Agreement or the Order Form; or (3) any action by any User. This section provides Client’s exclusive remedy for any infringement claims or damages.
6.2. Client agrees to indemnify, defend and hold harmless Supplier and its affiliates and their respective officers, directors, employees, agents, successors and assigns, from any and all Losses, and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (a) claims, fines or penalties arising out of the failure of Client to comply with any laws or regulations, and (b) third-party claims arising from Client’s breach of its representations or warranties hereunder or under any Order Form.
6.3. Each Party agrees to indemnify, defend and hold harmless the other Party, and its affiliates, officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (a) the death or bodily injury of any person caused by the tortious conduct of the indemnitor and, in the case where Client is the indemnitor, its Users; and (b) the damage, loss or destruction of any real or tangible personal property caused by the tortious conduct of the indemnitor and, in the case where Client is the indemnitor, its Users.
6.4. If any Services become, or in Supplier’s reasonable opinion (as evidence with consultation with Supplier’s legal counsel) is likely to become, the subject of an infringement or misappropriation claim or proceeding, Supplier will use commercially reasonable efforts to secure the right to continue using the Services or replace or modify the Services to make it non-infringing. In the event Supplier can accomplish neither of such actions, and only in such event, Supplier will remove such Services and the fees will be equitably adjusted to reflect such removal.
6.5. With respect to any indemnity obligation of a Party (“Indemnitor”) under this Agreement, the Party seeking indemnification (“Indemnitee”) will promptly notify Indemnitor in writing of any claims or Losses subject to indemnity. Any delay in notice to Indemnitor will relieve Indemnitor of its defense and indemnity obligations only to the extent of any prejudice of the defense of the Losses. Within 15 days following receipt of written notice from Indemnitee, but no later than ten days before the date on which any response to a complaint or summons is due, Indemnitor will notify Indemnitee in writing if Indemnitor acknowledges its indemnification obligation and will assume control of the defense and settlement of the claims or Losses (a “Notice of Election”). If Indemnitor delivers a Notice of Election, Indemnitor will have the sole right to conduct the defense of any claims or Losses and all negotiations for compromise or settlement, except that: (a) Indemnitor will not enter into any compromise or settlement that will have the effect of creating any liability or obligation (whether legal or equitable) on Indemnitee’s part without the prior written consent of Indemnitee; (b) no compromise or settlement is authorized unless Indemnitee is completely released of liability under the compromise or settlement; and (c) Indemnitee will be entitled to obtain counsel at its own expense and assist
in the handling of any claim. Any counsel selected by Indemnitor to defend Indemnitee will be subject to the reasonable approval of Indemnitee, and such approval shall not be unreasonably withheld. If Indemnitor, after receiving notice of any Losses, fails to deliver a Notice of Election within the time frame set forth herein or otherwise fails to acknowledge its obligation of indemnification, Indemnitee may (without further notice to Indemnitor) retain counsel and undertake the defense, compromise, or settlement of the Losses. The Indemnitor will promptly reimburse Indemnitee for all costs and expenses incurred in defending against the Losses, including the payment of any judgment or award or the costs of compromise or settlement of the Losses.
7. Support Services. Support services provided under this Agreement are specified in the Services policies referenced in the Order Form.
8. Termination. Services provided under this Agreement shall be provided for the period defined in the Order Form unless earlier terminated in accordance with this Agreement. The term of the Services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the Supplier Programs listed in the Order Form, shall end.
8.1. Unless otherwise specified in the Order Form, if a Party commits a material breach of this Agreement or an Order Form and does not cure such breach within 30 days after notice from the non-breaching Party, or if a Party commits a material breach of this Agreement or an Order Form that cannot be cured with due diligence within 30 days of written notice thereof, then the non-breaching Party may, by giving written notice to the breaching Party, terminate this Agreement or an Order Form, in whole or in part, as of a date specified in the notice of termination. The nonbreaching Party may agree, in its sole discretion and by written consent, to extend the 30-day period for so long as the breaching Party continues reasonable efforts to cure the breach. Client agrees that if Client fails to cure a default within the applicable cure period under this Agreement, Supplier may restrict Client from using the Services ordered.
8.2. This Agreement shall terminate automatically, with no further act or action of either Party, in the event that a receiver is appointed for a Party or its property, a Party makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against such Party under any bankruptcy, insolvency or debtor’s relief law and such proceedings are not dismissed within sixty (60) days of filing, or a Party is liquidated or dissolved.
8.3. If Supplier terminates this Agreement or any Order Form pursuant to Section 8.1 or Section 8.2, Client must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under this Agreement and any outstanding Order Form, including any minimum contracted fees, plus related taxes and expenses. If Client terminates this Agreement or any Order Form pursuant to section 8.1 or section 8.2, Supplier will reimburse Client for any amount of pre-paid fees.
8.4. In addition, Supplier reserves the right at any time to either terminate the Services hereunder if any of the foregoing is not cured within 14 days after Supplier’s initial notice thereof or deny or suspend Client’s access to or use of the Services if: (a) Client fails to pay Supplier as required under this Agreement and do not cure within the first ten days of the 14-day cure period; (b) Client violates any provision within sections 3, 4, or 12 of this Agreement; (c) Supplier’s provision of the Services could subject Supplier to liability under any international, federal or state laws, regulations or under any international, federal or state governmental agency or regulatory body; (d) if Supplier suspects that Client (i) may be in violation of the terms of use and restrictions applicable to such Services, or (ii) may be attempting to obtain unauthorized access to portions of the Services; or (e) if Supplier may be violating any laws or any third party rights. Any suspension by Supplier of the Services under this paragraph shall not excuse Client from Client’s obligation to make payment(s) under this Agreement.
8.5. Notwithstanding anything to the contrary in this Agreement, any termination of this Agreement shall not relieve either Party hereto of any of its obligations or liabilities accrued hereunder prior to such termination. Termination or expiration of this Agreement for any reason or no reason shall immediately terminate any and all licenses granted by Supplier herein, except as expressly set forth in this Section 8.5. At Client’s request, and for a period of up to 30 days after the termination of the applicable Order Form, Supplier will permit Client to access the Services solely to the extent necessary for Client to retrieve a file of Client Data then in the Services environment. Client agrees and acknowledges that Supplier has no obligation to retain Client Data and that Client Data may be irretrievably deleted after 30 days following the termination of the Order Form.
8.6. Sections 2.2, 4, 5, 6, 8.5, 8.6, and 10 through 15 shall survive termination or expiration of this Agreement.
9. Fees and Taxes.
9.1. Client agrees to pay for all Services ordered as set forth in the applicable Order Form. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable (except as set forth in Section 8.3). All amounts invoiced hereunder are due on receipt and payable within 30 days of the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection and may result in immediate termination of the Services. Fees for Services listed in an Order Form are exclusive of taxes and expenses. Client agrees to pay any sales, value-added or other similar taxes imposed by applicable law that Supplier must pay based on the Services that Client ordered, except for taxes based on Supplier’s income. Client agrees to pay any payment processing fees that Supplier must pay based on the Services that Client ordered, and any program earnings will be net of such fees. Client will reimburse Supplier for reasonable expenses related to providing any on-site portion of the Services.
10. Nondisclosure.
10.1. As used in this Agreement, “Confidential Information” will mean all information, in any form, furnished or made available directly or indirectly by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is marked confidential, restricted, or with a similar designation. The terms and pricing under this Agreement and any Order Form will be deemed Confidential Information.
10.2. A Party’s Confidential Information shall not include information that: a) is or becomes known to the public through no fault of the Receiving Party; (b) is already known to the Receiving Party prior to its receipt or becomes known to the Receiving Party by disclosure from a third party who has a lawful right to disclose the information; (c) is known to the Receiving Party from its own independent development without reference to the Confidential Information of the Disclosing Party, as reasonably established by the Receiving Party; or (d) is authorized to be disclosed by prior written consent of the Disclosing Party.
10.3. Unless otherwise set forth in an applicable Order Form, the Receiving Party agrees and acknowledges that it will have no proprietary interest in the Confidential Information of the Disclosing Party; except to the extent that any rights with respect to using such Confidential Information are expressly granted to the Receiving Party pursuant to this Agreement. The Receiving Party acknowledges and agrees that it will not use the Disclosing Party’s Confidential Information for any purpose other than to perform its obligations under this Agreement and that it will not disclose any such Confidential Information to any third party, except to its officers, directors, employees, independent contractors and affiliates who have a need to know such Confidential Information to perform their duties under this Agreement. The Receiving Party will take all commercially reasonable steps to ensure that the Confidential Information is securely maintained. The Receiving Party agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, know-how or trade secrets in or underlying any software or technology of the Disclosing Party. In the event the Receiving Party becomes legally compelled to disclose any of the Confidential Information, it will provide the Disclosing Party with prompt notice of the requirement and will not divulge any information until the Disclosing Party has had the opportunity to seek a protective order or other appropriate remedy to curtail the disclosure. If protective actions by the Disclosing Party are unsuccessful, or the Disclosing Party otherwise waives its right to seek those remedies, the Receiving Party will disclose only that portion of the Confidential Information which it is legally required to disclose.
11. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. (A) EXCEPT FOR ANY THIRD PARTY INFRINGEMENT CLAIM, BREACH OF THE NONDISCLOSURE REQUIREMENTS IN SECTION 10, MISUSE OF CLIENT DATA, OR GROSSLY NEGLIGENT ACTIONS OR OMISSIONS, SUPPLIER’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER DOCUMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO SUPPLIER FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE SIX (6) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN CLIENT’s FAVOR AGAINST SUPPLIER SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CLIENT UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. (B) EXCEPT FOR ANY THIRD PARTY INFRINGEMENT CLAIM, BREACH OF THE NONDISCLOSURE REQUIREMENTS IN SECTION 10, OR GROSSLY NEGLIGENT ACTIONS OR OMISSIONS, CLIENT’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER DOCUMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY OWED TO SUPPLIER AS OF THE DATE OF THE CLAIM, PLUS THE TOTAL AMOUNTS ACTUALLY PAID TO SUPPLIER FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE SIX (6) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12. Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. Client agrees that such export control laws govern Client’s use of the Services (including technical data) and any Services deliverables provided under this Agreement, and Client agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Client agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
13. Customer Reference. Without prior written consent with Client, which shall not be unreasonably withheld, conditioned or delayed, Client agrees (a) that Supplier may identify Client as a recipient of Services and use Client’s logo in sales presentations, marketing materials and press releases, and (b) to develop a brief customer profile for use by Supplier for promotional purposes.
14. Third Party Websites, Content, Products and Services. The Services may enable Client to add links to Web sites and access to content, products and Services of third parties, including Users, advertisers, affiliates and sponsors of such third parties. Supplier is not responsible for any third-party Web sites or third-party content provided on or through the Services and Client bears all risks associated with the access and use of such Web sites and third-party content, products and Services.
15. Miscellaneous.
15.1. Client agrees that this Agreement (including the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy) and any Order Form) is the complete agreement for the Services ordered by Client, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. It is expressly agreed that the terms of this Agreement, including any Order Form, shall supersede the terms in any purchase order or other non-Supplier document and no terms included in any such purchase order or other non-Supplier document shall apply to the Services ordered. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of Client and of Supplier.
15.2. Supplier is an independent contractor and the Parties agree that no employment, partnership, joint venture, or agency relationship exists between them. The Parties each will be responsible for paying their own employees, including employment related taxes and insurance.
15.3. Client shall obtain at Client’s sole expense any rights and consents from third parties necessary for Supplier and its subcontractors to perform the Services under this Agreement.
15.4. This Agreement is governed by the substantive and procedural laws of California and Client and Supplier agree to submit to the exclusive jurisdiction of, and venue in, the court in Los Angeles County in California in any dispute arising out of or relating to this Agreement and all exhibits, schedules and any other instruments hereto.
15.5. You agree to receive communications from us, including invoices, service notices and amendments to the Agreement or an Order Form through email and postings on our website. We may also send notices to you by fax, post, personal delivery or courier sent to the most recent address or number you have provided us. You agree that legal claims and demands against us must be sent to us by personal delivery, registered post or courier to Launch Mobility, Inc., 1730 E Holly Ave, El Segundo, CA 90245, ATTN: President or such other address as we may advise you from time to time in accordance with this provision. Any notice will be deemed to be received: (i) if mailed, ten business days following mailing; (ii) if delivered by courier, three business days following acceptance for delivery by the courier; (iii) if delivered personally, on the actual day of delivery unless after business hours, in which case it will be deemed to be received the following business day; and (iv) if delivered by email, on the next business day following transmission.
15.6. Neither party may assign this Agreement or give or transfer the Services or an interest in them to another unaffiliated entity without prior consent of the other party, whose consent shall not be unreasonably withheld, conditioned or delayed.
15.7. Except for actions for nonpayment or breach of Supplier’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than two years after the cause of action has accrued.
15.8. Supplier, at Supplier’s sole cost and expense, may audit Client’s use of the Services upon reasonable advance written notice to Client. If Client’s participation is required, Supplier may only audit the Client upon 15 days prior written notice, and during Client’s normal business hours. Client agrees to cooperate with Supplier’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Client’s normal business operations. Client agrees to pay within 30 days of written notification any underpayments due by Client to Supplier. If Client does not pay, Supplier can end Client’s Services and/or this Agreement. Client agrees that Supplier shall not be responsible for any of Client’s costs incurred in cooperating with the audit.
15.9. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. Client understands that Supplier’s business partners, including any third-party firms retained by Client to provide computer consulting Services, are independent of Supplier and are not Supplier’s agents. Supplier is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as a Supplier subcontractor on an engagement ordered under this Agreement.
15.10. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement.
15.11. Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); other events outside the reasonable control of the obligated Party. The Parties both will use reasonable efforts to mitigate the effect of a force majeure event. If such an event continues for more than 30 days, either Party may cancel unperformed Services upon written notice. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Client’s obligation to pay for the Services.
15.12. To the extent that Supplier reasonably and in good faith believes that a milestone, including all deliverables, is not met or is expected to not be met due to any acts or omissions of Client, the parties will, acting reasonably and in good faith, agree to an equitable extension of the deadline for such milestone. The parties acknowledge and agree that the Supplier will not be deemed to have failed to meet a milestone for which the deadline has passed if such milestone is subject to good faith extension negotiations.
Last Updated: 13 December 2023