Customer Terms of Service

Empyra Master SOFTWARE AS A SERVICE AGREEMENT

This agreement (“Agreement“) is between Subscriber and myOneFlow. “Subscriber” means the entity on behalf of which this Agreement is accepted or, if that does not apply, the individual accepting this Agreement. “Service Provider” means the myOneFlow entity that owns or operates the Products that Subscriber uses or accesses

If you (the person accepting this Agreement) are accepting this Agreement on behalf of your Oganization or another entity, you agree that: (i) you have full legal authority to bind your organization or such entity to this Agreement, and (ii) you agree to this Agreement on behalf of your organization or such entity.

If you are accepting this Agreement using an email address from your organization or another entity, then: (i) you will be deemed to represent that party, (ii) your acceptance of this Agreement will bind your organization or that entity to these terms, and (iii) the word “you” or “Subscriber” in this Agreement will refer to your organization or that entity.

By clicking on the “Agree” (or similar button or checkbox) that is presented to you at the time of placing an Order, downloading Products, or by using or accessing the Products, you confirm you are bound by this Agreement. If you do not wish to be bound by this Agreement, do not click “Agree” (or similar button or checkbox), download the Products, or use or access the Products.

Recitals

WHEREAS, Subscriber requires third-party hosted “software as a service” (the “Services,” as further described herein) with respect to certain of its information technology needs;

WHEREAS, Subscriber requested a proposal from Service Provider for such Services;

WHEREAS, Service Provider has experience and expertise in the business of providing the Services;

WHEREAS, Service Provider submitted a proposal to Subscriber to perform such Services on behalf of Subscriber;

WHEREAS, based on Service Provider’s superior knowledge and experience relating to such Services, Subscriber has selected Service Provider to provide and manage the Services;

WHEREAS, Service Provider wishes to perform the Services and acknowledges that the successful performance of the Services and the security and availability of Subscriber’s data (“Subscriber Data,” as further described herein) are critical to the operation of Subscriber’s business; and,

WHEREAS, Service Provider has agreed to provide the Services to Subscriber, all on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:

1. The Services. This Agreement sets forth the terms and conditions under which Service Provider agrees to license to Subscriber certain hosted software and provide all other services necessary for productive use of such software including customization / integration, user identification and password change management, data import / export, monitoring, technical support, maintenance, training, backup and recovery, and change management (the “Services“) as further set forth on an Exhibit A (sequentially numbered) in the form of the Exhibit A attached hereto or in other statements of services containing substantially similar information and identified as an Exhibit A. The Agreement shall remain in effect unless terminated as provided for herein.
   1. Authorized Users; Authorized Uses. Unless otherwise limited on an Exhibit A, Service Provider grants Subscriber a renewable, revocable, nonexclusive, royalty-free, and worldwide right for any Subscriber employee, contractor, or agent, or any other individual or entity authorized by Subscriber, (each, an “Authorized User”) to access and use the Services. Other than those limitations expressly described in an Exhibit A, Authorized Users will have no other limitations on their access or use of the Services.
   2. Acknowledgement of License Grant. For the purposes of 11 U.S.C. § 365(n), the parties acknowledge and agree that this Agreement constitutes a license grant of intellectual property in software form to Subscriber by Service Provider.
   3. Changes in Number of Authorized Users. The Services are provided on a per user or tiered basis, such tiers as further described in an Exhibit A. Subscriber agrees to license the initial number of Authorized Users described in such Exhibit A (the “Minimum Commitment“). Subscriber is entitled to increase or decrease the number of Authorized Users on an as-requested basis; provided, however, that Subscriber shall maintain the Minimum Commitment unless the parties otherwise agree to adjust the Minimum Commitment. Should Subscriber elect to change the number of Authorized Users, Service Provider shall reduce or increase Authorized Users to the corresponding tier described in the Exhibit A and adjust the prospective Services Fees accordingly no later than five (5) business days from Subscriber’s written request.
   4. Control and Location of Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Service Provider, giving due consideration to the requests of Subscriber. Except as otherwise specified in an Exhibit A, the Services (including data storage), shall be provided solely from within the continental United States and on computing infrastructure located in the continental United States.
   5. Development and Test Environments. In addition to production use of the Services, Subscriber is entitled to one pilot/test site environment for use by Authorized Users at no additional charge. Such non-production environment may have reduced data storage and processing capacities than the production environment. Service Provider shall cooperate with Subscriber’s requests in managing the non-production environments such as refreshing Subscriber Data upon request.
   6. Documentation. The documentation for the Services (the “Documentation”) will accurately and completely describe the functions and features of the Services, including all subsequent revisions thereto. The Documentation shall be understandable by a typical end user and shall provide Authorized Users with sufficient instruction such that an Authorized User can become self-reliant with respect to access and use of the Services. Subscriber shall have the right to make any number of additional copies of the Documentation at no additional charge.
   7. Changes in Functionality. During the term of an Exhibit A, Service Provider shall not reduce or eliminate functionality in the Services. Where Service Provider has reduced or eliminated functionality in the Services, Subscriber, at Subscriber’s sole election and in Subscriber’s sole determination, shall: (a) have, in addition to any other rights and remedies under this Agreement or at law, the right to immediately terminate this Agreement or the Exhibit A and be entitled to a return of any prepaid fees; or, (b) determine the value of the reduced or eliminated functionality and Service Provider will immediately adjust the Services Fees accordingly on a prospective basis.
2. Support; Maintenance; Additional Services.
   1. Technical Support. Service Provider shall provide the Technical Support described in an Exhibit A. The Services Fees shall be inclusive of the fees for the Technical Support.
   2. Maintenance. Service Provider shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services, as described in the Documentation, is available to Authorized Users; (b) the functionality of the Services in accordance with the representations and warranties set forth herein, including but not limited to, the Services conforming in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Exhibit A and the Documentation; (c) the Service Level Standards can be achieved; and, (d) the Services work with the then-current version and the prior version of Internet Explorer, Mozilla Firefox, and Google Chrome Internet browsers. The Services Fees shall be inclusive of the fees for maintenance.
      1. Required Notice of Maintenance. Unless as otherwise agreed to by Subscriber on a case-by-case basis, Service Provider shall provide no less than seven (7) calendar day’s prior written notice to Subscriber of all non-emergency maintenance to be performed on the Services, such written notice including a detailed description of all maintenance to be performed. For emergency maintenance, Service Provider shall provide as much prior notice as commercially practicable to Subscriber and shall provide a detailed description of all maintenance performed no greater than one (1) calendar day following the implementation of the emergency maintenance.
      2. Acceptance of Non-Emergency Maintenance. Unless as otherwise agreed to by Subscriber on a case-by-case basis, for non-emergency maintenance, Subscriber shall have a ten (10) business day period to test any maintenance changes prior to Service Provider introducing such maintenance changes into production (the “Maintenance Acceptance Period”). At the end of the Maintenance Acceptance Period, Service Provider shall be entitled to introduce the maintenance changes into production.
   3. Customization / Integration Services. Service Provider shall provide the Customization / Integration Services, if any, described in an Exhibit A. The Services Fees shall be inclusive of the fees for the Customization / Integration Services.
   4. Training Services. Service Provider shall provide the Training Services, if any, described in an Exhibit A. The Services Fees shall be inclusive of the fees for the Training Services.
3. Change Control Procedure. Subscriber may, upon written notice, request changes to the scope of the Services under an Exhibit A. If Subscriber requests an increase in the scope, Subscriber shall notify Service Provider, and, not more than five (5) business days (or other mutually agreed upon period) after receiving the request, Service Provider shall notify Subscriber whether or not the change has an associated cost impact. If Subscriber approves, Subscriber shall issue a change control, which will be executed by the Service Provider.
4. Term and Termination; Renewals.
   1. Term. This Agreement is legally binding as of the Effective Date and shall continue until terminated as provided for herein. Unless this Agreement or an Exhibit A is terminated earlier in accordance with the terms set forth herein, the term of an Exhibit A (the “Initial Term“) shall commence on the Start Date and continue until the End Date. Following the Initial Term and unless otherwise terminated as provided for in this Agreement, an Exhibit A shall automatically renew for successive one (1) year terms (each, a “Renewal Term“) until such time as a party provides the other party with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then-current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.
   2. Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement or an Exhibit A for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the nonbreaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the nonbreaching party may terminate this Agreement or an Exhibit A for cause as of a date specified in such notice.
   3. Payments upon Termination. Upon the termination of this Agreement or an Exhibit A, Subscriber shall pay to Service Provider all undisputed amounts due and payable hereunder, if any, and Service Provider shall pay to Subscriber all amounts due and payable hereunder, such as Performance Credits and prepaid fees, if any.
   4. Return of Subscriber Data. Upon the termination of this Agreement or an Exhibit A, Service Provider shall, within ten (10) business days following the termination of this Agreement or an Exhibit A, provide Subscriber, at an additional charge, with a final extract of the Subscriber Data. Further, Service Provider shall certify to Subscriber the destruction of any Subscriber Data within the possession or control of Service Provider but such destruction shall occur only after the Subscriber Data has been returned to Subscriber. This Section shall survive the termination of this Agreement.
5. Fees; Billing. Subscriber shall be responsible for and shall pay to Service Provider the fees as further described in an Exhibit A, subject to the terms and conditions contained in this Agreement and such Exhibit A. Any sum due Service Provider for the Services for which payment is not otherwise specified shall be due and payable thirty (30) business days after receipt by Subscriber of an invoice from Service Provider.
   1. Billing Procedures. Unless otherwise provided for under an Exhibit A, Service Provider shall bill to Subscriber the sums due pursuant to an Exhibit A by Service Provider’s invoice, which shall contain: (a) Subscriber’s purchase order number, if any, and Service Provider’s invoice number; (b) description of Services for which an amount is due; (c) the fees or portion thereof that are due; (d); taxes, if any; (e); any Performance Credits or other credits; and, (f) total amount due. Service Provider shall email all invoices to your Invoice/accounting contact.
   2. Taxes. Service Provider represents and warrants that it is an independent contractor for purposes of federal, state, and local taxes. Service Provider agrees that Subscriber is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Service Provider. Any and all taxes, interest, or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld by Service Provider.
   3. Non-binding Terms. Any terms and conditions included in a Subscriber purchase order or a Service Provider invoice, as the case may be, shall be deemed to be solely for the convenience of the respective party, and no such term or condition shall be binding upon the parties.
   4. Disputed Invoices. If Subscriber disputes any part of an invoice in good faith, Subscriber must notify Empyra in writing within fifteen (15) days of the invoice date and describe the dispute in reasonable detail. Customer must pay the undisputed portion by the due date. The parties will work in good faith to resolve the dispute promptly. The remedies in this Section X apply to undisputed amounts.
   5. Late Payment Interest. If Empyra does not receive an undisputed amount by its due date, Empyra may, at its sole discretion, charge interest on the outstanding balance at one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. Interest accrues from the due date until the balance is paid in full. If Empyra does not charge interest in any instance, Empyra does not waive its right to charge interest later. Subscriber will also reimburse Empyra for reasonable costs of collection, including reasonable attorneys' fees.
   6. Suspension of Services. If any undisputed amount is thirty (30) days or more past due, Empyra may suspend access to the Services for Subscriber and all Authorized Users. Before suspending, Empyra will give Subscriber at least ten (10) days' written notice of the past-due amount and the intended suspension date. All fees continue to accrue during suspension. Suspension is not a breach of this Agreement by Empyra, and Subscriber is not entitled to service credits or refunds for the suspension period. Empyra will restore access within two (2) business days after receiving payment in full of all past-due amounts, including any accrued interest.
   7. Termination and Data Deletion. If any undisputed amount remains unpaid one hundred eighty (180) days after its due date, Empyra may terminate this Agreement and permanently delete all Subscriber Data. Before deleting, Empyra will give Subscriber at least thirty (30) days' written notice. If Subscriber pays all outstanding amounts during that notice period, Subscriber may request an export of Subscriber Data in Empyra's standard format. Subscriber Data held in backups will be deleted on Empyra's normal backup rotation schedule. Empyra has no liability to Subscriber for deleting Subscriber Data in accordance with this Section.
6. Subscriber Data.
   1. Ownership. Subscriber’s data (“Subscriber Data,” which shall also be known and treated by Service Provider as Confidential Information) shall include: (a) Subscriber’s data collected, used, processed, stored, or generated as the result of the use of the Services; and, (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same is reserved by Subscriber. This Section shall survive the termination of this Agreement.
   2. Service Provider Use of Subscriber Data. Service Provider is provided a limited license to Subscriber Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Subscriber Data only to the extent necessary in the providing of the Services. Service Provider shall: (a) keep and maintain Subscriber Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Subscriber Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement, the applicable Exhibit A, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Subscriber Data for Service Provider’s own purposes or for the benefit of anyone other than Subscriber without Subscriber’s prior written consent. This Section shall survive the termination of this Agreement.
   3. Extraction of Subscriber Data. Service Provider shall, within ten (10) business days of Subscriber’s request, provide Subscriber, at an additional charge, an extract of the Subscriber Data.
   4. Backup and Recovery of Subscriber Data. As a part of the Services, Service Provider is responsible for maintaining a backup of Subscriber Data and for an orderly and timely recovery of such data in the event that the Services may be interrupted. Unless otherwise described in an Exhibit A, Service Provider shall maintain a contemporaneous backup of Subscriber Data that can be recovered within two (2) hours at any point in time. Additionally, Service Provider shall store a backup of Subscriber Data in an off-site “hardened” facility no less than daily, maintaining the security of Subscriber Data, the security requirements of which are further described herein. Any backups of Subscriber Data shall not be considered in calculating storage used by Subscriber.
7. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. The provisions of this Section shall survive the termination of this Agreement.
   1. Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Agreement, in all cases and for all matters, Subscriber Data shall be deemed to be Confidential Information.
   2. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.
   3. Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
   4. Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of Subscriber, at the sole election of Subscriber, the immediate termination, without liability to Subscriber, of this Agreement or any Exhibit A corresponding to the breach or threatened breach.
   5. Surrender of Confidential Information upon Termination. Upon termination of this Agreement or an Exhibit A, in whole or in part, each party shall, within ten (10) calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Service Provider shall return Subscriber Data to Subscriber following the timeframe and procedure described further in this Agreement. Should Service Provider or Subscriber determine that the return of any non-Subscriber Data Confidential Information is not feasible, such party shall destroy the non-Subscriber Data Confidential Information and shall certify the same in writing within ten (10) calendar days from the date of termination to the other party.
8. Data Privacy and Information Security.
   1. Undertaking by Service Provider. Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (c) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (d) ensure the proper disposal of Subscriber Data; and, (e) ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing. In no case shall the safeguards of Service Provider’s data privacy and information security program be less stringent than the safeguards used by Subscriber.
9. Proprietary Rights.
   1. Pre-existing Materials. Subscriber acknowledges that, in the course of performing the Services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Service Provider.
   2. No License. Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.
   3. The provisions of this Section shall survive the termination of this Agreement.
10. Insurance. Service Provider shall, at its own expense, procure and maintain in full force and effect during the term of this Agreement, policies of insurance, of the types and in the minimum amounts as follows, with responsible insurance carriers duly qualified in those states (locations) where the Services are to be performed, covering the operations of Service Provider, pursuant to this Agreement: commercial general liability ($1,000,000 per occurrence, $2,000,000 aggregate); excess liability ($2,000,000 per occurrence, $2,000,000 aggregate); workers’ compensation (statutory limits) and employers’ liability ($500,000 per accident); and, professional liability ($1,000,000 per occurrence, $1,000,000 aggregate). Subscriber shall be named as an additional insured in such policies which shall contain standard cross liability clauses. Service Provider shall cause the liability it assumed under this Agreement to be specifically insured under the contractual liability section of the liability insurance policies. The liability policy shall be primary without right of contribution from any insurance by Subscriber. Such policies shall require that Subscriber be given no less than thirty (30) calendar days prior written notice of any cancellation thereof or material change therein. Subscriber shall have the right to request an adjustment of the limits of liability for commercial general liability and professional liability insurance as Service Provider’s exposure to Subscriber increases. Service Provider shall provide Subscriber with certificates of insurance evidencing all of the above coverage, including all special requirements specifically noted above, and shall provide Subscriber with certificates of insurance evidencing renewal or substitution of such insurance thirty (30) calendar days prior to the effective date of such renewal or substitution.
11. General.
    1. Relationship between Subscriber and Service Provider. Service Provider represents and warrants that it is an independent contractor with no authority to contract for Subscriber or in any way to bind or to commit Subscriber to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Subscriber. Under no circumstances shall Service Provider, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of Subscriber. In recognition of Service Provider’s status as an independent contractor, Subscriber shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Service Provider or Service Provider’s agents or staff, if any. Subscriber shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Service Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Subscriber.
    2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio and the federal laws of the United States of America. Service Provider hereby consents and submits to the jurisdiction and forum of the state and federal courts in the State of Ohio in all questions and controversies arising out of this Agreement.
    3. Compliance with Laws; Subscriber Policies and Procedures. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable. Service Provider shall comply with Subscriber policies and procedures where the same are posted, conveyed, or otherwise made available to Service Provider.
    4. Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Service Provider will cooperate with any Subscriber supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to Subscriber, including, without limitation, the Successor Service Provider. Service Provider agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
    5. Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Service Provider fails to use its best efforts to minimize such delays, the delays shall be included in the determination of Service Level achievement. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. A force majeure event does not excuse Service Provider from providing Services and fulfilling its responsibilities relating to the requirements of backup and recovery of Subscriber Data. In no event shall any of the following constitute a force majeure event: (a) failure, inadequate performance, or unavailability of Service Provider’s subcontractors, if any; or, (b) configuration changes, other changes, Viruses, or other errors or omissions introduced, or permitted to be introduced, by Service Provider that result in an outage or inability for Subscriber to access or use the Services. Within thirty (30) calendar days following the Effective Date and on an annual basis thereafter until the termination of this Agreement, Service Provider shall provide its then-current business continuity plan (“Business Continuity Plan”) to Subscriber upon Subscriber’s request. The Business Continuity Plan shall include: (a) Services and Subscriber Data backup and recovery procedures; (b) fail-over procedures; and, (c) how Service Provider will interact with its business continuity suppliers, if any. Service Provider shall test its Business Continuity Plan on an annual basis until the termination of this Agreement and shall provide the test results to Subscriber upon Subscriber’s request.
    6. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
    7. Notices. Any notice given pursuant to this Agreement shall be by email or in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.
    8. Assignment of Agreement. This Agreement and the obligations of Service Provider hereunder are personal to Service Provider and its staff. Neither Service Provider nor any successor, receiver, or assignee of Service Provider shall directly or indirectly assign this Agreement or the rights or duties created by this Agreement, whether such assignment is effected in connection with a sale of Service Provider’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of Subscriber. In the case of an assignment by Service Provider, Service Provider represents and warrants that it has all requisite rights and power to transfer any agreements or other rights with third-parties whose software is incorporated into the Services or who are necessary for the performance and use of the Services. Subscriber, at Subscriber’s sole election, may assign any and all of its rights and obligations under this Agreement to any company that succeeds to substantially all of Subscriber’s business.
    9. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
    10. Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Subscriber and Service Provider as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
    11. Cumulative Remedies. All rights and remedies of Subscriber herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Service Provider for the enforcement of this Agreement, and temporary and permanent injunctive relief.