Terms and Conditions
These terms and conditions of service (the “Terms and Conditions”) constitute a legally binding contract between Gelnius, LLC (“Gelnius”) and the entity that is being granted access to one or more Gelnius Service Offering(s) (“Customer” or “you” or “your”). Gelnius and Customer are individually referred to herein as a “Party,” and collectively as the “Parties.” These Terms & Conditions are subject to change by Gelnius from time to time, effective upon posting on Gelnius’ website (www.gelnius.com).
(a) “Agreement” means, collectively, these Terms & Conditions and any Statement of Work or Master Service Agreement referencing these Terms & Conditions.
(b) “Authorized Users” means Representatives of Customer who have been specifically granted authority by Customer to access the Gelnius Service Offering(s).
(c) “Confidential Information” means (i) the business or technical information provided by one Party (“Disclosing Party”) to the other Party (“Receiving Party”); (ii) the terms, conditions and pricing of the Agreement; (iii) as to Gelnius as Disclosing Party, the Gelnius Technology and (iv) as to Customer as Disclosing Party, Customer Content. Confidential Information shall not include any information that: is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; was known to a Receiving Party prior to its disclosure by the Disclosing Party; was independently developed by a Receiving Party without use of or reliance upon the Confidential Information of the Disclosing Party; or is received from a third party not having an obligation of non-disclosure owed to the Disclosing Party.
(d) “Customer Content” means information and data relating to Customer, uploaded to a Gelnius Service Offering(s) by Authorized Users.
(e) “Documentation” means end-user documentation regarding the then-current features, functionality and/or use of the Gelnius Service Offering(s) which Gelnius generally provides to its customers.
(f) “Effective Date” means the effective date of the first Statement of Work.
(g) “Fees” means, collectively, the Subscription Fees, the Professional Services Fees and any other fees payable by Customer to Gelnius as set forth in a Statement of Work.
(h) “Force Majeure” shall mean causes beyond a Party’s reasonable control, including, but not limited to, governmental actions, fire, work stoppages or labor problems, shortages, civil disturbances, acts of terror, transportation problems, interruptions of power or communications, internet slowdowns or failures, failure of suppliers or subcontractors, natural disasters or acts of God (including flood, fire and earthquakes).
(i) “Harmful Code” means any malicious code or other feature that prevents or impedes use of all or any part of the Gelnius Service Offering(s), or facilitates unauthorized access to, or tracking of, the Gelnius Service Offering(s).
(j) “Improvements” means all improvements, customizations, updates, enhancements, error corrections, bug fixes and changes to a Gelnius Service Offering(s), as developed by Gelnius and which it generally puts into production for its customers’ use or which is otherwise developed pursuant to an Statement of Work.
(k) “Intellectual Property Rights” means any and all common law, statutory and other intellectual property rights, including, without limitation, copyrights, trademarks, trade secrets, patents and database rights, issued, honored or enforceable under any applicable Laws anywhere in the world.
(l) “Law” means any local, state, national and/or foreign law, treaty, and/or regulation applicable to a respective Party.
(m) “Professional Services” means professional services and training that are from time to time performed by Gelnius pursuant to a Statement of Work.
(n) “Professional Services Fees” means the fees payable for Professional Services, which may be fixed or based on time and materials, as set forth in a Statement of Work.
(o) “Representatives” means the employees, consultants, agents or representatives of a Party.
(p) “Gelnius Service Offering(s)” means Gelnius’ proprietary software applications and all Improvements thereto.
(q) “Gelnius Technology” means and includes: (i) the Gelnius Service Offering(s) and third party software applications included therein; (ii) all technology, technical information, processes, algorithms, software, inventions and specifications embodied in the Gelnius Service Offering(s); and (iii) all Documentation.
(r) “Statement of Work” or “SOW” means a document executed by the Parties that sets forth the Gelnius Service Offering(s) being subscribed for, the Subscription Term, renewal provisions, description of the Professional Services, the Fees, payment terms, Customer’s obligations in connection with the Professional Services and any other agreed upon provisions.
(s) “Subscription Fees” means the fees payable for access to and use of a Gelnius Service Offering(s) as set forth in the applicable Statement of Work.
(t) “Subscription Term” means the period during which a Gelnius Service Offering(s) will be made available to Customer as provided in the applicable Statement of Work, and subject to these Terms & Conditions.
2. Customer’s Use of the GELNIUS Service Offering(s).
2.1 Grant of License. Subject to the terms of the Agreement, Gelnius hereby grants to Customer a limited, non-exclusive, personal and nontransferable (except as otherwise provided in Section 11.5) and non-sublicensable right and license to access and use the Gelnius Service Offering(s) pursuant to the terms of the applicable Statement of Work(s). The features and functionality of the Gelnius Service Offering(s) may be modified or removed from time to time; provided, that such features and functionality shall not be materially diminished during the then-current Subscription Term or on less than sixty (60) days’ prior written notice.
2.2 Access Methods. Authorized Users may access the Gelnius Service Offering(s) only through use of one or more passwords or other access methods as provided by Gelnius (collectively, “Access Methods”). Customer is solely responsible for ensuring that Access Methods are kept confidential and Customer will be solely responsible for all acts or omissions of any person using the Gelnius Service Offering(s) through the Access Methods, and all transmissions generated by use of Customer’s Access Methods will be deemed to have been authorized by Customer.
2.3 Support and Availability. Gelnius will provide the Gelnius Service Offering(s) in accordance with its then-current Support and Availability Policy (“Support and Availability Policy”), which can be provided upon request. The Support and Availability may be changed from time to time, with any material change requiring sixty (60) days prior written notice to Customer.
2.4 Security. Gelnius shall maintain a formal security program (“Security Standards”) which is designed to: (i) promote the security and integrity of Customer Content; (ii) protect against threats or hazards to the security or integrity of Customer Content; and (iii) prevent unauthorized access to Customer Content. Customer’s current Security Standards can be obtained upon written request from the Gelnius. Gelnius may modify the Security Standards from time to time, but such changes will not materially degrade the level of security accorded Customer’s Content.
2.5 Customer Covenants. Customer shall access and use the Gelnius Service Offering(s) solely for its internal and legitimate business purposes. Customer shall: (i) have sole responsibility for the accuracy and quality of, and obtaining necessary permissions for, all Customer Content; (ii) use its reasonable commercial efforts to prevent unauthorized access to, or use of, the Gelnius Service Offering(s) from or through its information technology systems, and notify Gelnius promptly of any such unauthorized access or use of which it has notice; and (iii) comply with all applicable Laws in connection with its use of the Gelnius Service Offering(s).
2.6 Prohibited Activities. Customer shall not: (i) send or upload through the Gelnius Service Offering(s) infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (ii) introduce any Harmful Code into the Gelnius Service Offering(s); or (iii) interfere with or disrupt performance of the Gelnius Service Offering(s). Further, Customer shall not: (A) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Gelnius Service Offering(s) available to any third party; (B) attempt to gain unauthorized access to the Gelnius Service Offering(s) or its related networks or software; (C) modify, copy or create any derivative works based on Gelnius Service Offering(s); (D) reverse engineer, de-compile, disassemble or otherwise attempt to discover or replicate the computer source code of the Gelnius Service Offering(s); (E) use any Gelnius Confidential Information to copy any features, functions, interfaces or graphics of the Gelnius Service Offering(s) or to otherwise create a product that competes with the Gelnius Service Offering(s); or (F) create internet “links” to the Gelnius Service Offering(s), or “frame” or “mirror” any content forming part of the Gelnius Service Offering(s).
2.7 Customer License to Gelnius. Customer hereby grants to Gelnius a non-exclusive, nontransferable (except as otherwise provided in Section 11.5), non-sublicensable (except as necessary to any third party hosting provider) and royalty-free right and license to copy, store, access, use, transmit and distribute and display the Customer Content solely for the purpose of providing Customer with access to and use of the Gelnius Service Offering(s). In addition to the foregoing, Gelnius may retain and use on an irrevocable, perpetual and royalty-free basis, the Customer Content which has been rendered non-Customer and non-personally identifiable and is aggregated with other Gelnius customer information solely to develop, use and distribute trend, benchmarking and statistical analyses. Gelnius retains all Intellectual Property Rights in such aggregated data.
3. Professional Service.
3.1 Statements of Work. Professional Services which Gelnius agrees to perform hereunder from time to time shall be performed pursuant to Statements of Work. All timelines or schedules for performance of the Professional Services are good faith estimates.
3.2 Delays. Customer acknowledges that any milestone and delivery schedules set forth in an SOW are contingent upon timely and correct performance of Customer’s Obligations (as defined herein). In the event of a delay caused by (i) Customer’s failure or inability to timely perform a Customer Obligation; (ii) Customer’s request for changes to the applicable SOW; (iii) third parties under the control of Customer or engaged by Customer and assisting Customer with respect to receipt of the Gelnius Service Offering(s); or (iv) Customer’s action(s) or omission(s) (collectively, “Customer Delays”), the applicable schedules for delivery of Gelnius Service Offering(s) by Gelnius under the applicable SOW shall be deemed amended on a day-for-day basis with the corresponding delay. In addition, if such delays are such as to adversely affect Gelnius’ deployment of its resources, Gelnius will inform Customer of the impact of the delays on the overall delivery schedules and the parties will negotiate an amendment to such schedules.
3.3 Customer Obligations. With respect to each SOW, Customer shall have the following responsibilities and obligations (collectively, the “Customer Obligations”): (i) complete in a correct manner all tasks and obligations assigned to it in the SOW, (ii) provide Gelnius with reliable, accurate and complete information as required; (iii) make timely decisions and obtain required management approvals; and (iv) follow the directions and instructions provided to Customer regarding the Professional Services.
4. Fees & Payment.
4.1 Fees. In consideration of Gelnius’ provision of access to the Gelnius Service Offering(s), Customer agrees to pay Gelnius the Subscription Fees. In consideration of Gelnius’ performance of Professional Services, Customer agrees to pay Gelnius the Professional Services Fees. The Fees will be paid on the payment terms set forth in the SOW, and, if not otherwise specified, shall be due thirty (30) days from the date of the applicable invoice. Any and all payments by Customer shall be made without any set-off, counterclaim or deduction.
4.2 Overdue Payments. Any payment not received from Customer by the due date may accrue, at Gelnius’ discretion, late charges at the rate of twelve percent (12%) per annum, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid. If Customer’s account is more than thirty (30) days past due, Gelnius reserves the right to suspend access to the Gelnius Service Offering(s) and/or performance of the Professional Services.
4.3 Price Changes. Fees shall be subject to change or increase as set forth in the applicable Statement of Work(s).
4.4 Taxes. The Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with this Agreement, excluding taxes on Gelnius’ net income. If Gelnius has an obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and timely paid by Customer.
5. Proprietary Rights.
5.1 Gelnius IP Ownership. Gelnius (or its licensors, where applicable) owns, and shall retain, all rights, title and interest in and to the Gelnius Technology, and all Intellectual Property Rights therein.
5.2 Reservation of Rights. Other than as expressly set forth in these Terms & Conditions, Gelnius grants to Customer no license or other rights in or to the Gelnius Technology and all such rights are hereby expressly reserved. Nothing in these Terms & Conditions constitutes a waiver of any of Gelnius’ rights under the intellectual property Laws of the United States or any other jurisdiction or under any other federal, state, or foreign Laws.
5.3 Customer Content. As between Gelnius and Customer, Customer owns the Customer Content.
6.1 Treatment of Confidential Information. All Confidential Information will be and remain owned by the Disclosing Party. The Receiving Party shall: (i) hold all Confidential Information of the Disclosing Party using the same safeguards and precautions as it uses to protect its own Confidential Information, but not less than reasonable safeguards and precautions; (ii) use the Confidential Information solely to perform its obligations or exercise its rights under the Agreement and (iii) not transfer, display, or otherwise disclose or make available such Confidential Information to any third party, other than the Receiving Party’s Representatives (and, as to Gelnius, its third party hosting providers) who have a legitimate need to know the Confidential Information in order for the Receiving Party to perform its obligations or exercise its rights under these Terms and Conditions. A Receiving Party shall be responsible for its Representatives’ compliance with the terms of this Section 6.
6.2 Disclosure in Compliance with Law. The Receiving Party may disclose the Confidential Information of the Disclosing Party in response to a valid court order, Law or other governmental action; provided, however, that: (i) if lawfully permitted, the Disclosing Party is notified in writing reasonably in advance of the disclosure of the information and (ii) the Receiving Party makes only such disclosure, in manner and content, as is required by such order, Law or other governmental action.
6.3 Remedies Upon Breach. The Disclosing Party may seek injunctive or other equitable relief to prevent or remedy a breach or threatened breach of any provision in this Section 6 by the Receiving Party or any of its Representatives, and the Receiving Party agrees not to object or defend against such action on the basis that monetary damages would provide an adequate remedy.
7. Warranties & Disclaimers.
7.1 Gelnius’ Warranties. Gelnius warrants to Customer as follows: (i) that the Gelnius Service Offering(s) will perform substantially in accordance with its Documentation, and (ii) that the Professional Services will be performed in a good and workmanlike manner.
(a) If a Gelnius Service Offering fails to comply with the warranty in Section 7.1(i), Customer must notify Gelnius in writing within ten (10) days following the first date the failure is identified by Customer. The notice from Customer shall specify in reasonable detail the alleged failure. Following such notice, as Customer’s exclusive remedy for such failure, Gelnius shall correct the non-conforming aspect of the Gelnius Service Offering(s) in accordance with the Support and Availability Policy at no additional charge to Customer. However, in the event Gelnius is unable to substantially correct such deficiencies after good faith efforts and at a commercially reasonable cost within thirty (30) days of Customer’s notification of such non-conformance, Customer, as its exclusive remedy for the breach of Section 7.1(i) and failure of Gelnius to correct the same, shall have the right to terminate the Statement of Work and receive from Gelnius the prepaid but unused portion of the Subscription Fee for the Gelnius Service Offering(s) for the then-current Subscription Term.
(b) If the Professional Services fail to comply with the warranty in Section 7.1(ii), Customer must notify Gelnius in writing within ten (10) days following performance of the deficient Professional Services. The notice from Customer shall specify in reasonable detail any alleged deficiencies in the Gelnius Service Offering(s). Upon such notice, Gelnius shall, as Customer’s exclusive remedy, promptly re-perform any such Professional Services in accordance with such warranty at no additional charge to Customer.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, GELNIUS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GELNIUS DOES NOT WARRANT THAT THE GELNIUS SERVICE OFFERING(S) WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE GELNIUS SERVICE OFFERING(S) AND PROFESSIONAL SERVICES.
8.1 Indemnification by Gelnius. Gelnius hereby agrees to defend Customer from and against any and all third party claims, suits, actions, demands or proceedings threatened, asserted or filed (collectively, “Claims”) against Customer, and to indemnify and hold harmless Customer from and against any and all damages, liabilities, expenses and penalties awarded or paid in settlement or incurred in the defense of such Claims (subject to Section 8.3, including but not limited to reasonable outside attorneys’ fees incurred) (collectively, “Losses”), alleging that a Gelnius Service Offering infringes, misappropriates or otherwise violates a third party Intellectual Property Right. If the Gelnius Service Offering is, or in Gelnius’ opinion may be, infringing, Gelnius may, in addition to providing the indemnification provided for herein, either obtain for Customer the right to continue use of the Gelnius Service Offering or replace or modify the Gelnius Service Offering so that it is no longer infringing, or, if neither of the foregoing options is reasonably available to Gelnius, elect to terminate the Agreement, in which case Gelnius’ sole liability (and Customer’s exclusive remedy) for such termination shall be to refund the prepaid but unused portion of the applicable Subscription Fee for the then-current Subscription Term. This Section 8.1 sets forth Customer’s sole remedy for any infringement or misappropriation of Intellectual Property Rights.
8.2 Indemnification by Customer. Customer hereby agrees to defend Gelnius and its affiliates (the “Gelnius Indemnified Parties”) from and against any Claims, and to indemnify and hold the Gelnius Indemnified Parties harmless against any Losses, arising from: (i) Customer’s use of the Gelnius Service Offering(s), except for any Claims as to which Gelnius is required to indemnify Customer as provided in Section 8.1; (ii) any breach of Section 2.5(i) or (iii) any claim that the use of the Customer Content has caused harm to a third party.
8.3 Indemnification Procedure. The indemnification provided for herein shall be subject to the terms and conditions of this Section. The Party claiming indemnification (“Indemnified Party”) must notify the other Party (“Indemnifying Party”) promptly in writing of the Claim subject to indemnification. The Indemnifying Party shall have sole control over such defense and all negotiations for the settlement and compromise of such Claim; provided, that the Indemnifying Party may only settle or compromise a Claim with the prior written approval of the Indemnified Party (which approval shall not be unreasonably withheld or delayed), except that no such approval shall be required if the settlement or compromise provides only for payment of money damages which are paid fully by the Indemnifying Party and/or, where Intellectual Property Rights of third parties all involved, limitations on continued use of materials or items covered by such third party Intellectual Property Rights. For so long as the Indemnifying Party is diligently conducting such defense, it shall not be liable for any attorney’s fees of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in a defense and settlement of any such Claim provided that, except if the last sentence of this Section 8.3 is applicable, the Indemnifying Party shall not be liable hereunder for any settlement or compromise negotiated by the Indemnified Party unless the Indemnifying Party agrees in writing to be so bound. If the Indemnified Party provides notice of a Claim in accordance with this Section 8.3 and is not notified within ten (10) business days thereafter that the Indemnifying Party intends to defend the Claim, the Indemnified Party shall be entitled to defend such Claim, and settle or compromise such Claim, subject to the indemnification provided for herein, including for reasonable attorneys’ fees of the Indemnified Party.
9. Limitation of Liability.
Except with respect to Gelnius’ payments to third parties pursuant to its indemnification obligations under Section 8.1, in no event shall (i) Gelnius’ cumulative liability arising out of or related to the Agreement, whether in contract, tort or otherwise, exceed the greater of (A) the equivalent of Subscription Fees under the applicable Statement of Work covering a three (3) month period or (B) the prepaid but unused portion of the Subscription Fee for the then-current Subscription Term under the applicable Statement of Work and (ii) Gelnius have any liability to Customer for loss of revenue, profits, data or goodwill, or for any indirect, special, incidental, punitive or consequential damages, or for cost or procurement of substitute goods or services, however caused and, whether in contract, tort or otherwise, arising out of, or in any way connected with the Agreement, including, but not limited to, the use or inability to use the Gelnius Service Offering(s), or any interruption, inaccuracy, error or omission, even if Gelnius has been previously advised of the possibility of such damages.
10. Term & Termination.
10.1 Duration. The Agreement shall commence on the Effective Date and, unless sooner terminated as provided below, shall continue for the period set forth in the applicable Statement of Work.
10.2 Termination for Cause. A Party may, in its discretion, may terminate the Agreement for cause upon thirty (30) days prior written notice to the other Party, if such other Party commits a material breach of the Agreement, if such breach remains uncured at the expiration of such notice period. Upon any termination of the Agreement by Customer, Gelnius shall refund to Customer any prepaid but unused Subscription Fees and, if the termination is due to a breach of obligations regarding Professional Services, then Gelnius shall also refund to Customer any prepaid but unearned Professional Services Fees (based on a good faith determination of the percentage of the Professional Services which have been completed).
10.3 Effect of Termination/Return of Customer-Owned Content. Upon any termination of the Agreement, (i) the license herein allowing Customer and its Authorized Users access and use of the Gelnius Service Offering(s) shall terminate automatically and Gelnius shall disable all applicable Access Methods; (ii) the Receiving Party shall be fully responsible for the return or destruction of all applicable Confidential Information disclosed to it, including deletion of such Confidential Information which is in electronic form from its servers; and (iii) subject to the next following sentence, Gelnius shall delete applicable Customer Content then on its servers. Upon request by Customer made within thirty (30) days after the effective date any termination of the Agreement, Gelnius will, within five (5) business days, make available to Customer for download a file of Customer Content in a standard data file format. After such thirty (30) day period, Gelnius shall have no obligation to maintain or provide any Customer Content.
10.4 Suspension. Notwithstanding anything to the contrary in this Section 10, if, in Gelnius’ reasonable judgment, due to Customer or any of its Representative’s action or inaction, the Gelnius Service Offering(s) or any component thereof are about to suffer a significant threat to security or functionality, then Gelnius may elect to immediately suspend Customer’s access to the Gelnius Service Offering(s). Gelnius may terminate the Agreement for breach if the cause of suspension is not cured within thirty (30) days after Gelnius’ initial notice thereof. Any suspension or termination by Gelnius under this Section 10.4 shall not excuse Customer from its obligation to make payment(s) under the Agreement.
10.5 Surviving Provisions. Termination of the Agreement shall not relieve Customer of the obligation to pay any Fees accrued or due and payable to Gelnius prior to the effective date of termination, and shall not otherwise prejudice the rights of either Party which have arisen on or before the date of termination. In addition, the following terms of these Terms and Conditions shall survive any termination of the Agreement: Sections 2.7 (second and third sentences), 4.4, 5, 6, 7.3, 8, 9, 10.3, 10.5, 11.3 and 11.6.
11. General Provisions.
11.1 Relationship of the Parties. The Parties are independent contractors. The Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-Party beneficiaries to the Agreement.
11.2 Force Majeure. Gelnius shall not be liable for, and shall be excused from, any failure to deliver or perform or for delay in delivery or performance due to Force Majeure. Gelnius shall provide Customer with written notice of the occurrence of any Force Majeure and shall use reasonable commercial efforts to mitigate its effects on Gelnius’ performance under the Agreement. If an event of Force Majeure materially and adversely affects Gelnius’ performance under the Agreement for a period of thirty (30) days, then Customer shall be entitled to terminate the Agreement, and shall be entitled to receive a refund from Gelnius of any prepaid but unused Subscription Fees.
11.3 Notices. All notices under the Agreement shall be in writing and shall be sent to the addresses set forth in the SOW, unless a Party notifies the other of a different address pursuant to notice given in accordance with this Section. All notices shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after mailing, first class, return receipt requested; or (iii) one business day after deposit with an overnight courier service.
11.4 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under these Terms & Conditions shall constitute a waiver of that right. All waivers must be in writing to be effective. A waiver of a provision in one instance shall not be construed to be a waiver of the same provision in any other instance or waiver of any other provision. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at Law or in equity.
11.5 Assignment. Neither Party may assign the Agreement or any of its rights or obligations thereunder, whether by operation of Law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, (i) either Party may assign the Agreement in its entirety, without consent of the other Party, to a successor-in-interest to the Party in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets (or, as to Gelnius, the assets used in performance of the Agreement) or otherwise and (ii) Gelnius is entitled to assign the Agreement to an affiliate thereof. Any attempt by a Party to assign its rights or obligations under the Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.6 Governing Law and Venue. The Agreement shall be governed and interpreted by the laws of the State of Illinois, U.S., without reference to its choice of law provisions. All suits to recover a claim must be exclusively submitted to the jurisdiction of a state or federal court located in Cook County, Illinois to which the Parties irrevocably consent to personal jurisdiction and waive all objections thereto. Where claims are not filed or suits are not instituted in accordance with the foregoing provisions, such claims shall be deemed waived and will not be paid. No action arising out of any breach or claimed breach of the Agreement or the transactions contemplated by the Agreement may be brought by either Party more than one (1) year after the cause of action has accrued. For purposes hereof, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.
11.7 Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. The Agreement supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. In the event of a conflict between the provisions in these Terms & Conditions and an SOW, the provisions in the Terms & Conditions shall take precedence and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted.
11.8 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by Law, and the remaining provisions of the Agreement shall remain in effect.