Last Updated Nov 16th, 2020
GENERAL: CODA will provide to the Subscriber access to the CODA Intelligence SaaS Platform, which shall include its Software and/or certain monitoring services as part of the CODA’s SaaS Platform offerings as referred to in the CODA Sales Quote. The parties acknowledge that these Services, as more fully defined below, include software applications and may include third party data licensed from third party data CODA, all of which are governed by the terms of this Agreement. CODA’s performance in connection with any Services provided in accordance with this Agreement is conditional upon Subscriber fulfilling its obligations as set forth in herein.
ARTICLE I. SOFTWARE AS A SERVICE (“SaaS”) END USER LICENSE AGREEMENT DEFINITIONS: The terms referenced in this Agreement have the following meaning:
a) “License” shall mean the license to use the Software granted to Subscriber in Section 2.3 hereof.
b) “CODA’s Services” (“Cybersecurity Services”) are certain specified services that are provided by CODA’s SaaS Platform and made commercially available by CODA pursuant to the terms of this Agreement.
c) “CODA’s SaaS Platform” (“CODA Intelligence”) refers to the either or both of hardware and software, owned, licensed, subscribed to, or managed by CODA and to which CODA grants the Subscriber and Subscriber’s users access to that portion of the Platform providing the Cybersecurity Services (comprising in part “Services” as defined herein) as set forth in the CODA Sales Quote.
d) “CODA Sales Quote” is the pricing plan or statement of work from CODA for the sale of specified products and services pursuant to this Agreement, and as agreed to and accepted by Subscriber’s electronic signature through the CODA website, or by hard copy bearing an inked signature, evidencing Subscriber’s execution thereof.
e) “CODA Service Description” is the formal CODA commercial service offering defining the scope and coverage of the Services, referenced in the CODAl Sales Quote and incorporated hereto and attached to this Agreement as Attachment B.
f) “Service” or “Services” means, in whole or in part, and individually or collectively the Cybersecurity Services, the CODA Intelligence Platform, the Software, and any other professional services in the CODA Software Service Description referenced in the CODA Sales Quote.
g) “Software” refers to the application software developed and/or distributed by CODA, as referenced by or in the CODA Sales Quote, and as described in the CODA Software Service Description.
h) “Subscriber” means the Customer named in the CODA Sales Quote and/or associated Customer Purchase Order.
i) “Subscriber Data” means any data, content, code, video, images or other materials of any type that Subscriber or Subscriber’s Sub-Customer(s) uploads, submits or otherwise transmits to or through Services; (ii) reports and documents generated by CODA or the Service from such data, metadata, content, code, video, images or other materials submitted by or on behalf of Subscriber.
j) “Users” means those employees, contractors, and other end users, as applicable, authorized by the Subscriber to use the Services in accordance with this Agreement. For Services that are specifically designed to allow the Subscriber’s customers, suppliers or other third parties to access the Services to interact with the Subscriber, such third parties will be considered “Users” subject to the terms of this Agreement.
k) “Third Party Data” means data obtained by CODA from public sources or sources under license by third party vendors, user submissions, and other commercially available data sources for use with the Service, such as reported cyber incidents or internet domain name purchases.
l) “Sub-Customer” means any business entity that is Subscriber’s customer to whom Subscriber is providing services and will utilize CODA Platform to deliver some or all of these services.
1.1) SaaS End User License Acceptance: The Software provides the functionality as specified in the printed CODA Intelligence Service Description and product documentation, and Attachment B. The Software, including any pre-existing data, are proprietary and the property of CODA and its suppliers and CODA retains any and all rights, title and interest in and to the Software, including in all copies, improvements, enhancements, modifications and derivative works of the Software. Ant licensee or sublicensee, by its use of the software accepts and agrees to be bound by the terms of this agreement.
BY SELECTING THE “ACCEPT” OPTION PRIOR TO LOGGING INTO THE SOFTWARE, ANY LICENSEE, SUBLICENSEE OR USER HEREBY ACKNOWLEDGES AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE LICENSEE, SUBLICENSEE OR USE DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, ACCESS TO AND USE OF THE SOFTWARE WILL NOT BE PERMITTED OR AUTHORIZED BY CODA.
1.2) Third Party Data. The Software may utilize confidential and proprietary Third Party Data in processing Subscriber Data and generating various reports and reporting data. Such Third Party Data may not be accurate, complete, or up-to-date and is subject to ongoing and continual change without notice. Neither CODA nor its Third Party Data sources make any representations or warranties regarding the accuracy, completeness, or currency of such data and assume no responsibility, for the accuracy, completeness, or currency of the Third Party Data, or any decisions Subscriber makes, based in whole or part on such Third Party Data. Third Party Data is not a substitute for Subscriber’s own judgment, professional advice, or for the need to seek additional input and research prior to making any decisions based on such data, and accordingly THIRD PARTY DATA ALONE SHOULD NOT BE USED TO MAKE DECISIONS. Moreover, Subscriber acknowledges that the Third Party Data will not be used: i) in determining personal, family or household eligibility for obtaining credit or insurance; ii) nor shall it be used for employment purposes (but may be used when evaluating an individual as an independent consultant vendor); nor iii) for any other purpose governed by the Fair Credit Reporting Act.
Subscribers will abide by all applicable laws as a condition for continued use of their Third Party Data. CODA will use reasonable commercial efforts to: (i) help ensure the accuracy and appropriateness of the Third Party Data before it is selected for use with the Service; (ii) to promptly remove Third Party Data from the Service that is identified as such and in connection with which CODA has been given reasonable notice; and (iii) promptly advise Subscriber of known or suspected problems and/or concerns with Third Party Data.
1.3 Software License Grant. Subject to the terms and conditions of this Agreement, CODA grants to Subscriber a limited, conditional, non-exclusive, non-transferable license to use the Software both in Subscriber’s internal business operations, as well as Users associated with any named Sub-Customer listed in Attachment A, during the term of this license (“License”). During such license terms, and where such license is neither revoked or otherwise terminated, Subscriber and Subscriber authorized Users may: (i) use the Software within the CODA Services Environment; and (ii) produce reports for their internal use. It is expressly understood and acknowledged by the parties hereto that no third party may rely in any manner on the reports, results, recommendation work product provided by or generated through the Service, and that all data is provided for informational purposes only for use by the Subscriber. Subscriber’s rights to use the Services shall be limited to those expressly granted in this Agreement. All rights not expressly granted to Subscriber are retained by CODA. The Services are protected by copyright laws, trade secrets, as well as laws and any applicable regulations and/or treaties related to other forms of intellectual property. CODA owns, or has the necessary rights in, all intellectual property rights in the Services necessary to provide the Services to Subscriber, and for Subscriber to access and utilize, the Services on the terms provided herein. Subscriber is granted only limited, conditional, non-exclusive, and non-transferable rights hereunder to use the Service and related user documentation during the term of the License as specified in the CODA Sales Quote, and thereafter, to use the reports and documents generated during the term of the License for Subscriber’s internal, historical or compliance purposes. Use of the Services or related user documentation is provided on an “AS IS” without warranty merchantability or fitness for a particular purpose, or warranty of any other kind, express or implied, at law or in equity. The parties hereto agree that any reports and documents will be treated as Confidential Information, in accordance with Section 2.6, notwithstanding the termination or expiration of this Agreement.
Subscriber grants CODA the right to use, process, collect, copy, store, transmit, modify and create derivative works of Subscriber Data only to the extent necessary to provide, improve, upgrade or modify the applicable Service to Subscriber in accordance with and during the term of this Agreement, but such right shall also include any additional post-termination period during which CODA provides the Customer with access to retrieve an export file of Subscriber’s content, provided, however, that the time for such access to retrieve shall not exceed 60 days. The license granted to Subscriber by this Agreement shall be limited to the number of user ID’s, or capacity (i.e., number of vendors etc.) provided for pursuant to the associated CODA Sales Quote, and shall only be valid during the License term as set forth in the CODA Sales Quote. CODA shall make only such copies of the Subscriber Data as may be necessary to perform its obligations under this Agreement or as otherwise part of its regular internal backup, disaster recovery or business continuity practices. Concurrently with the term of this Agreement, Subscriber shall have taken and will on an ongoing basis continue taking reasonable steps to secure its information infrastructure, including restricting access (i) to user IDs and passwords, and (ii) access to the Software to those of its employees who are authorized by Subscriber to use the Software. t, Subscriber remains solely and exclusively responsible for any and all actions taken by Subscriber or its employees using Subscriber accounts and passwords. Subscriber agrees to immediately notify CODA of any unauthorized use of the Software to which Subscriber becomes aware, or reasonably suspect.
Subscriber agrees not to use or permit any use of the Services, including uploading, emailing, posting, publishing or otherwise transmitting any Subscriber Data, or any Services-generated work product or report, or third party content (collectively, “Material”), for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that it knows to be false, defamatory, harassing or obscene, © violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, (f) frame, scrape, link or mirror any content forming a part of the Service, other than Subscriber’s own intranets or otherwise for its own internal use; (g) knowingly upload to the Services or use the Services to send or store viruses, worms, time-bombs, Trojan horses or other harmful or malicious code or (h) otherwise violate applicable laws, ordinances or regulations. Subscriber expressly agrees that it will not utilize content that would constitute a crime or expose Subscriber or CODA to criminal or civil liability, and CODA reserves the right to immediately terminate this Agreement and Subscriber’s access to and use of the Services in the event such content is used by Subscriber. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Subscriber Data. CODA reserves the right, but has no obligation, to take remedial action if any of Subscriber’s Material violates the foregoing restrictions, including removing or disabling access to such Material and terminating Subscriber’s license. Subscriber expressly acknowledges and agrees that CODA shall have no liability to the Subscriber, Subscriber’s Sub-Customers, or any of Subscriber’s clients in the event that CODA takes such action or actions.
1.4) Restrictions on Transfer, Use, Alteration and Copying Subscriber may not, without CODA’s prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Services except as expressly provided in this Agreement; (ii) creation of any derivative works based on the Service or its accompanying documentation, including but not limited to translations, (iii) alteration of any program files or libraries in any portion of the Service, or reproduction of the database portion or creation of any tables or reports relating to the database structure; (iv) reverse engineering, disassembly, or decompiling of the Service; (v) use of the Service in connection with service bureau, facility management, timeshare, service CODA or like activity whereby Subscriber operates or uses the Service for the benefit of a third party; (vi) use of the Service, including any data, information or reports generated by the Service, by any party other than Subscriber and its subcontractors and agents acting on Subscriber’s behalf and subject to the terms of this Agreement; or (vii) falsely imply any sponsorship or association with CODA. Any violation of this section shall result in immediate termination of this Agreement, which termination shall be in addition to any other remedies at law or in equity available to CODA. Except for the purposes of training, translation, Subscriber’s internal backup, operational support or internal distribution, Subscriber may not copy or allow others to copy any part of the user documentation or other printed material provided with the Service without CODA’s written consent.
1.5) Security. CODA implements reasonable security measures to help protect Subscriber Data from cyberattack. However, subject to CODA’s taking reasonable measures to secure Subscriber data for transport, Subscriber understands that use of the Services necessarily involves transmission of Subscriber Data over networks that are not owned, operated or controlled by CODA, and CODA shall not responsible for any of Subscriber Data lost, altered, intercepted or stored across such networks. Notwithstanding the foregoing, CODA acknowledges and confirms that it has in place and will maintain throughout the term of this Agreement appropriate technical and organizational measures to help secure against the accidental, unauthorized or unlawful processing, destruction, loss, damage or disclosure of Subscriber Data and adequate security programs and procedures to ensure that unauthorized persons or parties do not have access to Subscriber Data or any equipment used to process such information or data.
1.6) Indemnity for Subscriber Data. Subscriber shall bear sole responsibility for any information uploaded or supplied by Subscriber, including any Sub-Customer, in connection with use of the Service, including but not limited to ensuring that the use of the Service to store, process and transmit Subscriber Data is compliant with all applicable laws and regulations. IN NO EVENT SHALL CODA BEAR ANY LIABILITY FOR THE USE OR LOSS OF ANY INFORMATION UPLOADED OR SUPPLIED BY SUBSCRIBER IN CONNECTION WITH USE OF THE SERVICE. Subscriber will defend, indemnify and hold harmless CODA from and against any loss, cost, liability or damage, including attorneys’ fees, for which CODA becomes liable arising from or relating to any claim relating to Subscriber’s, including any Sub-Customer’s, inappropriate use of Subscriber Data in violation of this Agreement, including but not limited to any claim brought by a third party alleging that Subscriber Data, or Subscriber’s use of the Services in breach of this Agreement, infringes or misappropriate the intellectual property rights of a third party or violates applicable law. CODA shall not be responsible or liable for any negligent or unintentional deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data. It is expressly acknowledged and agreed that damages for any liability in connection with this Agreement shall be limited to the total of Subscriber fees, limited to one year’s prior fees and as further set forth herein.
1.8) Term of Service Period. Services provided under this Agreement shall be provided for the period defined in the CODA Sales Quote, unless earlier suspended or terminated in accordance, as applicable, with this Agreement, the CODA Sales Quote or Online Pricing Guide.
1.9) Limited Warranty. THIS SECTION SETS FORTH SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR UNCORRECTED SERVICE FAILURE: CODA represents and warrants to Subscriber that the Services will function and perform in substantial compliance with the printed product information attached hereto as Attachment B. CODA makes no warranty that the Software will meet Subscriber’s requirements or operate under Subscriber’s information infrastructure or in conformance with Subscriber’s specific conditions of use.
SERVICE FAILURE: Except as otherwise expressly provided herein, In the event of a material malfunction resulting in the failure of the Services to operate in a manner not conforming to the Product documentation (“Service Failure”), Subscriber shall promptly notify CODA in writing of such Service Failure and CODA will use reasonable efforts to correct the Service Failure to bring it into compliance with the provisions of the Service Level Agreement set forth in Attachment A. If any Service Failure reported to CODA by Subscriber remains uncorrected within thirty (30) days of Subscriber’s written notice to CODA, Subscriber’s remedy is as follows: Subscriber may terminate this Agreement, and shall not be liable for any unpaid balance from the date such notice has been given to CODA
PRE-PAID SERVICES: In the event of a Service Failure in connection with which Subscriber has pre-paid and provided written notice to terminate, Subscriber shall receive a refund based on the period of time following written notice on a pro-rata basis. ALL LIMITED WARRANTIES ON THE SERVICE ARE GRANTED ONLY TO SUBSCRIBER AND ARE NON-TRANSFERABLE. ANY SUCH TRANSFER SHALL BE VOIDABLE AND IS VOID. THIS REMEDY REPRESENTS CODA’S EXCLUSIVE DUTY AND SUBSCRIBER’S SOLE REMEDY EVEN IN THE EVENT THAT THE REMEDY SHOULD FAIL IN ITS ESSENTIAL PURPOSE. CODA MAKES NO WARRANTY THAT OPERATION OF THE SERVICE WILL BE SECURE, ERROR FREE, OR FREE FROM INTERRUPTION.
EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT OR OTHERWISE AGREED TO IN WRITING BY CODA, THE SERVICES ARE PROVIDED TO SUBSCRIBER “AS IS” AND “AS AVAILABLE.” CODA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER MUST DETERMINE WHETHER THE SERVICE SUFFICIENTLY MEETS SUBSCRIBER’S REQUIREMENTS FOR SECURITY AND AVAILABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SUBSCRIBER BEARS SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED BY SUBSCRIBER RESULTING FROM ANY SERVICE FAILURES. CODA WILL UNDER NO CIRCUMSTANCE BE RESPONSIBLE OR LIABLE FOR THE LOSS OF SUBSCRIBER OR USER DATA ON ANY SUBSCRIBER COMPUTER OR INFORMATION STORAGE DEVICE. IN ADDITION, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT (A) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICER; (B) THE SERVICE IS NOT INTENDED TO COMPRISE OR IMPLY IN ANY WAY, SUBSCRIBER’S COMPLIANCE WITH ANY STATUTE, RULE, REGULATION OR STANDARD; AND © SUBSCRIBER IS AND REMAINS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH APPLICABLE LAWS RULES AND REGULATIONS.
1.10) Indemnification for Claims Related to Intellectual Property. CODA, in its sole and exclusive discretion, shall, at its expense, indemnify and hold harmless Subscriber, e, against any claims, demands, suits or proceedings (“Claims”) made or brought against Subscriber by a third party alleging that the use of the Service as contemplated hereunder, and excluding Claims based upon Data provided by Subscriber that infringe a patent, copyright, trademark, or other intellectual property right of a third party or misappropriation such third party’s trade secrets, or any other Claim based upon generally available public data. Upon Subscriber’s receiving notice of a Claim, Subscriber shall (a) give CODA prompt written notice of the Claim; (b) give CODA sole control of the defense and settlement of the Claim (provided that CODA may not settle or defend any claim unless it unconditionally releases Subscriber of all liability and does not attribute any blame or contributory fault to Subscriber); and © provide to CODA, at CODA’s cost, all reasonable assistance in the defense or settlement of such Claim. This Section 1.10 comprises CODA’s limit of liability and Subscriber’s exclusive remedy for any claim of intellectual property infringement against Subscriber and arising out of Subscriber’s use of the Services.
1.11) License by Subscriber to Use Feedback. Subscriber grants CODA an unconditional, worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Subscriber or Users relating to the Services, provided that such use and incorporation shall be made on an anonymized basis and without identification or attribution to Subscriber or User. Subscriber hereby acknowledges that it has obtained consent from Subscriber’s Users in connection with such use and incorporation.
II GENERAL TERMS AND CONDITIONS
2.1) Fees, Invoices and Payment. Subscriber shall be invoiced and pay CODA monthly the fees due for the Services as stated in the CODA Sales Quote or the Online Pricing Guide (the “Fees”). The Fees include all charges associated with the Services plan selected, any overage fees resulting from additional Seats beyond the quantity in the plan, and any additional or incidental charges. Subscriber shall pay all invoices within 30 days of receipt of the invoice; thereafter unpaid balances which are not the basis of a good faith dispute shall accrue interest at a rate of 1.5% per month. Any Subscriber prepayment or any credits earned must be used within 15 months of the date purchased, earned or awarded or they will expire without notice. If Subscriber fails to pay all invoices or charges for referencing these Terms within thirty (30) business days of CODA’s notice to Subscriber that payment is past due or delinquent in addition to CODA’s other remedies, CODA may suspend or terminate access to and use of the Service by Subscriber and/or Subscriber’s Users.
2.2) Service Upgrades and Downgrades. If Subscriber chooses to upgrade a Service plan or increase the number of Seats at any time during a pre-paid Subscription Term (a “Subscription Upgrade”), a prorated incremental Subscription Charge associated with such Subscription Upgrade during Subscriber’s then current Subscription Term will be due and payable on the date such Subscription Upgrade is invoiced. If Subscriber chooses to downgrade a Service or decrease the number of Seats during a current, pre-paid Subscription Term (a “Subscription Downgrade”), Subscriber shall receive a pro-rated incremental credit for such for Subscription beginning with the next Subscription Term provided there are no termination or other penalties associated with the downgrade as set forth in this Agreement or in any related Agreement.
2.3) Equitable Relief. Subscriber acknowledges that any use or disclosure of the Software or Third party Data or Subscriber Data in a manner inconsistent with the terms of this Agreement, or breach of confidentiality may cause CODA irreparable damage for which other remedies may be inadequate, and Subscriber agrees not to oppose any request to a court of competent jurisdiction by CODA, with respect to the Subscriber Data, for injunctive or other equitable relief seeking to restrain such use or disclosure. Subscriber waives any right it may have to require CODA post a bond or other form of security as a precondition to any such injunctive relief.
2.4) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
2.5) Confidential Information. “Confidential Information” means any information one party discloses to the other under this Agreement which is identified as confidential or proprietary. Confidential Information does not include information which: is rightfully obtained by the recipient without breaching any confidentiality obligations; is or becomes known to the public through no act or omission of the recipient; the recipient develops independently without using Confidential Information; or is disclosed in response to a valid court or governmental order if the recipient notifies the disclosing party and assists in any objections. The recipient may use Confidential Information only for the purposes expressly permitted pursuant to this Agreement, and shall treat it with the same degree of care as it does its own confidential information, but with no less than reasonable care. This section shall not affect any other confidential disclosure agreement between the parties.
2.6) Limitation of Liability. Except for breach of Subscriber’s payment obligations or situations arising as a result of either party’s gross negligence or willful misconduct, or a breach of confidentiality or indemnity provisions granted hereunder, each party’s aggregate liability to the other for claims arising out of or relating to this Agreement, whether for breach or in tort, at law or in equity, is limited to the price charged to Subscriber for the Services for the license period of the Agreement.
EXCEPT AS OTHER PROVIDED HEREIN, CODA SHALL NOT BE HELD LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT, BREACH OF WARRANTY, IN TORT, AT LAW OR IN EQUITY, INCLUDING NEGLIGENCE, AND EVEN CODA HAS PREVIOUSLY BEEN ADVISED OF, OR COULD REASONABLY HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES.
2.7 Termination: Either party may terminate this Agreement if a breaching party fails to cure any breach of this Agreement within thirty (30) days of written notice from the non-breaching party specifying such breach.
2.7.1 OBLIGATIONS UPON TERMINATION. Upon termination of this Agreement, Subscriber shall discontinue use of the Service and Subscriber shall be responsible for deleting all Subscriber Data from its information infrastructure, including any backups should they exist.
2.7.2) SURVIVAL UPON TERMINATION. The other rights and obligations of the parties pursuant to Paragraphs; 1.4, Restrictions on Transfer; 1.6, Indemnity for Subscriber Data; 1.7, Legal Compliance; 1.9, Limited Warranty; 1.10, Indemnification; 2.5, Confidential Information; 2.6, Limitation of Liability; 2.9, Hiring Personnel; 2.7, Termination and 2.8. Audit; of this Agreement shall survive and continue after any termination of this Agreement.
2.7.3) POST-TERMINATION TRANSITION SERVICES. In the event of Termination of this Agreement or SOW, and provided that this Agreement or SOW has not been terminated by CODA due to Subscriber’s undisputed non-payment of any amount due CODA, CODA will provide Subscriber with assistance reasonably requested by Subscriber to effect the orderly transition of the Services, in whole or in part, to Subscriber (“Transition Services”) following the termination of this Agreement or a SOW, in whole or in part. The Transition Services shall be provided by CODA as-available, on a time and materials basis and may include at CODA’s then usual and customary hourly or project rates: (a) developing a plan for the orderly transition of the terminated Services from CODA to Subscriber; (b) if required, transferring the Subscriber content; © using commercially reasonable efforts to assist Subscriber in acquiring any necessary rights to legally and physically access and use any third-party technologies and documentation then being used by CODA in connection with the Services; (d) using commercially reasonable efforts to make available to Subscriber, pursuant to mutually agreeable terms and conditions, any third-party services then being used by CODA in connection with the Services; and (e) such other activities upon which the parties may agree to in writing.
2.8) Audit. Upon reasonable notice to Subscriber, and during normal business hours, CODA will have the right to audit Subscriber to ensure compliance with the terms of this Agreement.w) CODA agrees to: (i) schedule each audit during business hours or at some other mutually agreeable time; (ii) be responsible for all time and materials costs of its own or third party auditors retained to conduct the audit; and (iii) abide by Subscriber’s reasonable security policies and practices.
2.9) Headings. Headings of sections in this Agreement are inserted for convenience only, and are in no way intended to limit or define the scope and/or interpretation of this Agreement.
2.10) Waiver & Severability. Failure on the part of either party to give notice of default, or delay in exercising any right or remedy hereunder, shall not operate as a waiver of any such right or remedy except as otherwise expressly stated in this Agreement. In the event that any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law.
2.11) Force Majeure. Neither party will be liable for any delay in performance hereunder if such delay is due to causes beyond the reasonable control of such party. In the event CODA is the party unable to perform for more than 30 days, Subscriber shall have the right to terminate this Agreement and CODA shall provide Subscriber with a pro-rata refund of fees paid upon any such termination.
2.12) Assignment. Except in the case of merger or sale of all or substantially all of a party’s assets, neither party may assign or otherwise transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other party. Such consent may not be unreasonably withheld.
2.13) Disputes, Arbitration and Class Action Waiver. Any disputes arising out of this Agreement shall be determined pursuant to the laws of the State of New Hampshire, without regard to its conflict of laws rules. The parties hereto agree to arbitrate any dispute arising out of or in connection with the performance of this Agreement before the American Arbitration Association (AAA), and pursuant to the AAA’s then effective rules and procedures. In any such dispute, the prevailing party will be entitled to reasonable attorneys fees and costs in connection with any such proceeding. In connection with any claim at law or equity that may be brought arising out this Agreement, Subscriber waives any right to commence class action litigation in either a judicial or arbitration proceeding.
3.0) Entire Agreement. This Agreement, together with its Attachments constitutes the entire agreement between the CODA and Subscribe relating to the Services, and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and prevails over any conflicting or additional terms contained in any quote, purchase order, order document, acknowledgment, or other communication between the parties relating to the Services, even if CODA uses such order documents for invoicing purposes.