VALUELINK CONNECT BY VALUELINK SOFTWARE – TERMS AND CONDITIONS FOR SUBSCRIBERS
IMPORTANT: BEFORE USING THIS SERVICE YOU MUST READ THE AGREEMENT BELOW CAREFULLY.
BY SUBSCRIBING AND USING THE SERVICE, THE CLIENT ACKNOWLEDGES AND AGREES TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR AN ENTITY FOR WHOSE BENEFIT THIS SERVICE IS BEING USED, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between Spur Global Ventures LLC (ValueLink Software) and the individual or entity agreeing to these terms of service (The Client)
“Service” means the ValueLink Connect platform offered by ValueLink Software.
“Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Business Days” means days between and including Monday to Friday but does not include public holidays and weekends.
“GLB” means the Gramm-Leach-Bliley Act, 15 USC Section 6801-6809, as may be amended, and all applicable regulations related to those sections.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-Public Personal Information” has the meaning set forth in the GLB.
“Users” means individuals who are authorized by The Client to use the ValueLink Connect platform, and who have been supplied user identifications, credentials and passwords by The Client (or by ValueLink Software at the Client’s request). Users may include but are not limited to the Client’s employees, consultants, contractors, agents or clients with whom The Client transacts business.
“Client Data” means all electronic data or information submitted by The Client through the Service.
2. PURCHASED SERVICES
2.1 Business Relationship. ValueLink Software provides the ValueLink Connect platform (“Service”) as a means for managing orders and vendors to the Client.
2.2 Provision of Service. ValueLink Software shall make the Service available to The Client for the duration of the term specified in Section 7 of this Agreement and for any subsequent renewals thereof. The Client agrees that the purchase of the Service hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments or communications made by ValueLink Software regarding future functionality or features, unless a description of such functionality or features are attached to this Agreement and signed by both parties.
2.3 User License. Means a non-transferable right to use the Service that ValueLink Software (licensor) provides to The Subscriber (licensee). The Client understands, acknowledges and agrees that User License is non-transferrable.
2.4 Order(s). Creating an order in the ValueLink Connect Platform is considered a transaction unit upon which the subscription fee will be based. The fee will be determined in accordance with Section 4.1 of this Agreement.
3. USE OF THE SERVICES
3.1 ValueLink Software Responsibilities. ValueLink Software shall provide the Client access to the service and provide support to the Client with Service use.
3. 2 Client Responsibilities. The Client shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of the Client’s Data and the means by which the Client acquires its Data, (iii) use commercially reasonable efforts to prevent unauthorized access or use of the Service, (iv) use the Service as indicated in the terms and conditions identified in this agreement and the product website, and (v) use the Service only in accordance with applicable laws and government regulations. The Client shall not (a) make the Service available to anyone other than its Users, (b) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of the Service, or (d) attempt to gain unauthorized access to the Service or their related systems or networks.
3.3 Service Limitations. The Client understands that storage for all Client data is available through the life of the Subscription in the Service and for a maximum of 90 additional days from the date of subscription cancellation. The cumulative storage space will be unlimited and will be sufficient to store the Client’s records generated using the Service.
3.4 Customer Support. Provided that The Client is current on its payments for the use of the Service and not in default of this Agreement, ValueLink Software shall provide to The Client its Basic Level of Support, at no additional charge.
Basic Level of Customer Support shall include:
(i) Commercially reasonable efforts to make the Service available 365x24x7
(ii) ValueLink Software Help Desk personnel (level one, non-technical) shall be available to provide phone and email support and assistance between the hours of 8:00 a.m. to 5:00 p.m. Central Time on Business Days.
(iii) Delivery of enhancements, updates and upgrades to the Service that ValueLink Software makes generally and commercially available without levying an incremental fee.
(iv) Error correction and maintenance modifications.
(v) Hardware and software patches deemed as critical.
Notwithstanding the foregoing, The Client understands that ValueLink Software shall in no way be liable for (a) the unavailability of the Service during planned downtime of the Service (for which ValueLink Software shall attempt to give at least 8 hours prior notice via email and which ValueLink Software shall schedule, to the extent practicable, between the hours of 9:00 p.m. to 5:00 a.m. Central Time or during the weekend hours), and (b) any unavailability of the Service caused by circumstances beyond ValueLink Software’ commercially reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ValueLink Software employees), or Internet service provider failures or delays.
4. FEES AND PAYMENT FOR SERVICES
4.1 Services Fees. The Client shall pay all fees as specified hereunder. Except as otherwise specified herein, (i) Service Fees are quoted and payable in US dollars (ii) Services Fees are based on order fees calculated for each order created in the Service (iii) payment obligations are non-cancellable and Services Fees paid are non-refundable. Service fees are based on monthly periods that begin on the date the Client registers to use the service, and are calculated based on the number of transactions performed by the Client.
4.2 Invoicing and Payment. On the third day of every month, ValueLink Software will bill the Client automatically for the total of the subscription fees and any additional charges incurred in the billing cycle. The Client will provide a valid Credit Card number that will be stored on file by ValueLink Software. The card will be valid and the Client shall provide authorization to ValueLink Software to use the card to collect subscription charges. In the event a Credit Card is not available, the client will provide an alternative means of payment to ensure timely payment of dues. All Services Fees are due on receipt and considered delinquent after 30 days. The Client is responsible for maintaining complete and accurate billing and contact information.
4.3 Suspension of Services and Acceleration. If any amount owed by The Client under this Agreement is 30 or more days overdue. ValueLink Software, may at its discretion, without limiting its other rights and remedies, suspend access to the Service until such amounts are paid in full or accelerate The Client’s unpaid fee obligations such that all obligations become immediately due and payable.
4.4 Taxes. Unless otherwise stated, Services Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases, Service Fees and revenues hereunder.
5. PROPERTY RIGHTS
5.1 Reservation of Rights. ValueLink Software reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to The Client or its clients hereunder other than as expressly set forth herein. The Client acknowledges and agrees that this Agreement does not grant The Client or its clients any title or right of ownership in or to the Service or any component thereof, or to any associated materials or intellectual property, or to any enhancements, modifications, suggestions, feedback or improvements or to any “Subject Ideas or Inventions” including any and all ideas, processes, trademarks, logos, service marks, inventions, designs, technologies, original works of authorship, formulas, discoveries, patents, copyrights, copyrightable works, marketing and business ideas, and proprietary improvements, know-how, data, rights, and claims related to the foregoing that, whether or not patentable, were and are conceived, developed, associated and integrated into the Service. The Client shall not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of ValueLink Software or its licensors in the Service.
5.2 Restrictions. The Client shall not (i) permit any third party to access the Service except as permitted herein or in an Order Form, (ii) create derivate works based on the Service, (iii) copy, frame or mirror any part or content of the Service, (iv) de-compile, disassemble, reverse engineer or otherwise reduce to human perceivable form or attempt to determine the algorithms of the Service, or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service.
6. DATA PROTECTION
6.1 Client Obligation. Use and protection of Non-Public Private Information received by The Client is Client’s sole responsibility.
6.2 Transmission Monitoring. Subject to the provisions of the GLB, The Client consents to ValueLink Software’ interception, collection, use, reproduction, storage and review of any of The Client’s Data to facilitate (a) billing, (b) Service maintenance, (c) the protection and security of the Service, (d) compliance with applicable law or valid legal process, or (e) ValueLink Software‟ collection, generation, storage, reproduction, and use of statistical information for purposes of, among other things, measuring the use of the Service and/or any of The Client’s Data transmitted to, from, or between Users.
6.3 Security Measures.
(a) ValueLink Software will provide The Client with “User identifications, credentials and passwords” to enable access to the Service. The Client is solely responsible for the security, distribution and use of the User identification, credentials and passwords. ValueLink Software will have no responsibility for misused user identifications, credentials and passwords. The Client will immediately notify ValueLink Software in the event of any loss, theft or unauthorized disclosure or use of any of The Client’s User identification, credentials and passwords or if The Client otherwise has reason to believe that the Service is no longer secure for any reason.
(b) Protection of The Client’s Data. ValueLink Software shall maintain reasonably appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of The Client’s Data. ValueLink Software shall not (i) modify The Client’s Data, (ii) disclose The Client’s Data except as compelled by law in accordance with section (d) (Compelled Disclosure) or as expressly permitted in writing by The Client, or (iii) access The Client’s Data except to provide the Service or prevent or address service or technical problems, or at The Client’s request in connection with customer support matters. ValueLink Software will take appropriate actions to address incidents of unauthorized access to The Client’s Data, including notification to The Client as soon as possible of any such incident.
In the event a data breach occurs, ValueLink Software shall follow all security and procedural guidelines to determine the cause and the extent of the breach. The customers impacted by the breach shall be notified as soon as possible and all facts shall be shared with customers once an internal investigation has been successfully completed.
(c) Except for ValueLink Software’ obligations regarding the privacy of information, and ValueLink Software’s obligations regarding proper operation of the Services and Protection of The Client’s Data, as set out above, The Client is solely responsible for safeguarding its Data. The Client is solely responsible for backup and restoration of its Data.
(d) Compelled Disclosure. ValueLink Software may disclose Confidential Information of the disclosing party if it is compelled by law to do so.
7. SERVICES TERM AND RENEWAL
7.1 Term and Renewal. The term of this Agreement shall commence on the Effective Date and shall remain in effect for 365 days from the effective date (including any renewals thereof), unless terminated earlier pursuant to this Agreement. The Agreement shall automatically renew for additional periods equal to 30 days, unless either party gives the other written notice of non-renewal at least 30 days before the expiration of the term. ValueLink Software may give The Client written notice of a pricing increase at least 40 days before the end of the expiring term.
7.2 Termination for Cause Opportunity to Cure. In addition to such other rights and remedies as may be available in law or in equity, should either party commit a material breach of its obligations hereunder, or should any of the representations of either party in this Agreement prove to be untrue in any material respect, the other party may, at its option, terminate this Agreement with thirty (30) days’ written notice, subject to “Cure Period.” Any notice of termination for cause must set forth with particularity a detailed description of the basis for such termination.
7.3 Termination for Cause No Opportunity to Cure. In the event of a breach of Section 3.2 of this Agreement, ValueLink Software may, without limiting ValueLink Software’ other rights and remedies, accelerate any agreements executed in connection herewith so that all such obligations become immediately due and payable, suspend the Service to The Client and immediately terminate this Agreement without further obligation or notice to The Client.
7.4 Failure to Pay Fees. If The Client fails to make any payment due hereunder, and fails to cure such breach within the fifteen (15) day Cure Period, after receiving written notice from ValueLink Software then ValueLink Software may immediately and without further notice terminate this Agreement and declare all unpaid Service Fees due and immediately payable.
7.5 Opportunity to Cure. Either party may, at its option, when in receipt of a written notice of the intent to terminate this Agreement, resolve or otherwise „cure‟ the alleged breach within the fifteen (15) day “Cure Period.” If alleged breach remains uncured for a period of thirty (30) days following receipt of notice, this Agreement shall be terminated.
7.6 Termination and Fees. Termination of this Agreement by either Party for any reason does not eliminate The Client’s obligation to pay all Service Fees for the period prior to the termination contracted in accordance with the terms and conditions of this Agreement and/or set forth in any Order Form. Upon termination, The Client shall remit Service Fees in accordance with the final invoice by ValueLink Software to The Client within ten (10) days from receipt of the final invoice, or as otherwise agreed in this Agreement for the regular payment of the Service Fees.
7.7 Effect of Termination. Upon the expiration or termination of this Agreement, each party shall, as soon as reasonably practicable return to the other any personal property or Confidential Information (defined below) of the other party then currently in its possession and remit any outstanding Service Fees due. The Client shall immediately cease all use of the Service and return or purge any and all components thereof, including returning or destroying or causing to be destroyed any and all copies of any documentation, notes and other materials comprising or regarding the Service.
7.8 Dispute of Fees. In the event that The Client disputes any Service Fees, The Client shall (a) set forth with particularity what Services Fees are disputed and set forth adequate basis for the dispute within thirty (30) days of receipt of invoice, and (b) pay all undisputed amounts to ValueLink Software in accordance with the terms and conditions of this Agreement.
7.9 Return of The Client’s Data. Upon written request by The Client made within 30 days after the effective date of termination of the Service, ValueLink Software will make available to The Client for download a file of The Client’s Data in a standard format along with source and target files in their native format. After such 30-day period, ValueLink Software shall have no obligation to maintain or provide any of The Client’s Data and shall thereafter, unless legally prohibited, delete all of The Client’s Data in the Service.
8. MINIMUM SERVICE LEVEL
There are no minimum service levels that the client needs to maintain in order to stay an active customer. A subscription to any of the plans listed on our website is the only requirement to staying an active customer.
9. COPYRIGHTS AND TRADEMARKS
ValueLink Software shall have and retain sole ownership of any and all ValueLink Software trademarks, including the goodwill pertaining thereto. The Client shall have and retain sole ownership of any and all of its trademarks, including the goodwill pertaining thereto. Neither Party shall remove or alter any of the other parties‟ proprietary or copyright notices, trademarks or logos without the express written permission of other party.
ValueLink Software and The Client shall advise all their employees, agents or contractors that they are bound by the confidentiality terms of this Agreement. Further, each party agrees that during the performance of this Agreement it may receive information relating to the other party that is not generally known or that is of a proprietary nature (“Confidential Information”). Each party agrees not to use or disclose any Confidential Information except for the purpose of meeting its obligations under this Agreement, and will not use Confidential Information for any other purpose whatsoever. Confidential Information shall not include any information that is (a) generally known or available to the public; (b) already known to the recipient at the time of receiving the Confidential Information through no wrongful act of the another party; (c) furnished to the recipient by a third party with the right to do so, or (d) is independently developed by recipient without reference to the Confidential Information provided herein. In the event that either party is required to disclose Confidential Information relating to the other party to a court or government agency, it shall, prior to disclosure, and as soon as practicable, notify the other party and allow it an adequate opportunity to object to the disclosure order or take other action to preserve the confidentiality of the information.
11. LIMITED WARRANTIES
11.1 Corporate Authority. Each party hereto represents and warrants that performance by it of its obligations and responsibilities under this Agreement: (i) is within its corporate powers; (ii) has been duly authorized by all necessary corporate action; (iii) will not violate any provision of its articles of incorporation or bylaws, or other applicable organizational documents, or any amendment thereof, or to the best of its knowledge constitute or result in breach of or default under or conflict with any statute or other law, or any order, regulation or ruling of any court or other tribunal or of any governmental or administrative agency; and (iv) to the best of its knowledge, will not violate any provision of, or constitute or result in a violation or breach of, or default under, or conflict with, any indenture, agreement, lease, instrument or other agreement to which such party is a party or by which it or its property or assets may be bound and affected.
11.2 No Liability for The Client’s Data. ValueLink Software shall not be liable for violation of any applicable law, rule, or organization (copy-written documents, inaccurate data, etc.) by data associated with content stored on the Service by The Client.
11.3 Duty to Defend. To the knowledge of ValueLink Software the Service and any component thereof does not violate any applicable law, rule or regulation or the rights of any third party, including any patent, trademark, trade name, copyright, trade secret or other intellectual property right. ValueLink Software shall defend The Client against and indemnify against any loss as a result of any claim that the use of the Service offering or any component thereof by The Client as permitted under this Agreement constitutes a trademark, patent or copyright infringement, but only to the extent that the action relates solely to the Service, not materially altered or modified by or on behalf of The Client, and is not based on use of the Service on other than the system for which the Service were designated, provided that: (a) The Client give ValueLink Software written notice within thirty (30) days of notice to The Client of any such claim, unless the delay causes no prejudice to ValueLink Software; (b) ValueLink Software controls the defense of any action and has the right to settle with The Client’s reasonable consent; and (c) The Client fully cooperates with ValueLink Software in the defense of such claim, provided that ValueLink Software shall reimburse The Client for any cost of such cooperation.
In the event that the use of the Service is enjoined by a court of competent jurisdiction, because of a holding of patent, trademark or copyright infringement, ValueLink Software at its sole option, shall: (a) procure for The Client the right to continue using the Service; or (b) modify the Service to make it non-infringing
11.4 DISCLAIMER. THE WARRANTIES MADE IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE BY VALUELINK SOFTWARE WITH RESPECT TO SERVICES AND SOFTWARE PROVIDED HEREUNDER AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
11.5 Delay. ValueLink Software shall not be responsible for any delay in the delivery of the Service, including implementation, support or maintenance, which is due to The Client’s failure to provide assistance as required under this Agreement.
The Client agrees to defend, indemnify and hold harmless ValueLink Software and its affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, as such, from and against any claims, actions, losses, damages or other liabilities that arise out of or result from any claim of any third party relating to (i) any dispute or alleged dispute between The Client and its clients, (ii) any breach by The Client of any covenant, representation or warranty set forth in this Agreement or otherwise, (iii) any defamatory or illegal, or allegedly defamatory or illegal material transmitted across the Service or (iv) a claimed violation by The Client of the GLB, provided that: (a) ValueLink Software shall give The Client written notice within thirty (30) days of notice to ValueLink Software of any such claim, unless the delay causes no prejudice to The Client; (b) The Client controls the defense of the action and has the right to settle with ValueLink Software’s reasonable consent; and (c) ValueLink Software fully cooperates with The Client in the defense of such claim, provided that The Client shall reimburse ValueLink Software for any cost of such cooperation.
13. LIMITATION OF LIABILITY
EXCEPT IN THE CASE OF THE RELEASE OR USE OF CONFIDENTIAL INFORMATION, AN INFRINGEMENT CLAIM, GROSS NEGLIGENCE OR WILFUL MISCONDUCT, VALUELINK SOFTWARE (AND ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS) TOTAL ACCUMULATED LIABILITY TO THE CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS, DAMAGES, COSTS OR EXPENSES WHETHER IN STRICT LIABILITY, NEGLIGENCE, CONTRACT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ITS SERVICES OR ANY SERVICE SHALL BE LIMITED TO FEES ACTUALLY PAID BY THE CLIENT HEREUNDER. NEITHER VALUELINK SOFTWARE NOR THE CLIENT SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL AND/OR CONTINGENT DAMAGES WHATSOEVER, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
14. GENERAL PROVISIONS
14.1 Entire Agreement. This Agreement, together with the Order Form, all exhibits and addendums hereto, which are incorporated herein by reference, comprise the entire agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage, or custom shall be deemed to amend or modify this Agreement. In the event of any conflict between the terms of this Agreement and the terms contained on the website of ValueLink Software, the terms of this Agreement shall control.
14.2 Independent Contractors. The relationship of the parties hereunder shall be that of independent contractors. Nothing in this Agreement shall be construed to constitute a partnership between or joint venture of the parties, nor shall either party be deemed the agent of the other party or have the right to bind the other party in any way without the prior written consent of such party, except as specifically provided in this Agreement.
14.3 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party that has given such waiver or excused such breach.
14.4 Governing Law. ANY LEGAL CLAIMS BROUGHT BY THE CLIENT AGAINST VALUELINK SOFTWARE SHALL BE BROUGHT IN TEXAS AND ANY LEGAL CLAIMS BROUGHT BY VALUELINK SOFTWARE AGAINST THE CLIENT SHALL BE BROUGHT IN TEXAS AND SHALL BE GOVERNED BY THAT JURISDICTION’S RESPECTIVE LAWS, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
14.4.1 Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, any modifications or extensions hereof, or any sale or performance hereunder, including any claim for damages or rescission or both shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). The arbitration shall be conducted by a single arbitrator to be selected by agreement of the parties not later than ten (10) days after delivery of the demand for arbitration or, failing such agreement, appointed pursuant to the rules of the AAA. Unless otherwise agreed upon by the parties, such arbitrator shall be a retired judge or attorney licensed to practice law in the State of Texas, with substantial experience in litigation or disputes of similar substance. Arbitration shall be conducted in Texas unless otherwise agreed by the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party in any arbitration shall be entitled, in addition to any other rights or remedies it may have, to reimbursement for its expenses incurred thereby including arbitration costs, reasonable attorneys‟ fees, and arbitrators‟ fees.
14.5 Force Majeure. In the case the Service shall be delayed or hindered or prevented from the performance of any act required hereunder by reason of strikes, lock-outs, labor troubles, inability to procure materials or services including substantial price increases in materials or services, failure of power, riots, insurrection, war or other reasons of a like nature not the fault of ValueLink Software, ValueLink Software shall immediately provide notice to The Client of such delay, and performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The Client shall not be liable for any fees for the period of any such delay.
14.6 Designated Representative. The Client shall appoint a “Designated Representative” to be The Client’s main contact person with ValueLink Software. The Client shall promptly notify ValueLink Software in writing via regular mail and email of any changes in appointment of the Designated Representative as stated in section 14.7.
14.7 Severability. If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, the parties shall mutually agree on an alternate, legally valid and enforceable provision. The remainder of this Agreement shall nevertheless continue in full force and effect to the extent that continued operation under this Agreement without the invalid or unenforceable provision is consistent with the intent of the parties as expressed in this Agreement.
14.8 Rights Cumulative, No Waiver. No right or remedy conferred upon or reserved to either of the parties is intended to be exclusive of any other right or remedy (unless such intent is expressly set forth in such provision), and every right and remedy shall be cumulative and in addition to any other right or remedy, now or hereafter legally existing upon any default. The failure of either party to insist at any time upon the strict observance or performance of any of the provisions of this Agreement or to exercise any right or remedy as provided in this Agreement shall not impair any such right or remedy or be construe to be a waiver or relinquishment.
14.9 Headings. Headings used in this Agreement are for convenience only and shall not be used in interpreting the provisions of this Agreement
14.10. Limitations of Claims. The period of limitation for any cause of action arising out of, based upon, or relating to this Agreement, including without limitation any claim in contract (including breach of warranty) or tort (including any claim of Services liability or negligence), or a defect in, or failure of performance of any Service is hereby reduced to and shall be a period of two (2) years after such cause of action arises.
14.11. Amendment. This Agreement may be amended at any time by mutual agreement by the Parties, but no such amendment is valid unless it is in writing and signed by duly authorized representatives of each party.
14.12 Entire Agreement. This Agreement, including all Exhibits attached hereto, contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior representations or agreements, oral or otherwise with respect to the subject matter contained herein.
14.13 Survival. Provisions 3, 4, 5, 6, 7, 9, 10, 11, 12 & 13 shall survive termination of this Agreement.
14.14 Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same instrument.