Last updated October 10, 2024
MASTER SERVICE AGREEMENT
This Master Service Agreement (“Agreement”) is made between Relvy AI Labs, Inc entity (“Relvy”) and the customer entity (“Customer”) on the ordering document or when services are subscribed to on our website and becomes effective on the last signature date of the ordering document issued by Relvy (“Effective Date”).
Customer has purchased certain services to be delivered by Relvy. This Agreement specifies the terms and conditions under which those services will be provided, apart from price, payment and other terms specified in the separate agreement between Customer and Relvy.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1 “Affiliates” means any person or entity directly or indirectly Controlling, Controlled by, or under common Control with a party, where “Control” means the legal power to direct or cause the direction of the general management of the company, partnership, or other legal entity.
1.2 “Ancillary Software” means software licensed by Relvy to Customer that is deployed on machines operated by or for Customer to facilitate operation of the Master Service or interoperation of the Master Service with other software, hardware, or services. Ancillary Software may include code that is licensed under third-party license agreements, including open source made available or provided with the Ancillary Software.
1.3 “Claim” means any third-party suit, claim, action, or demand.
1.4 “Confidential Information” means: (a) Relvy Core Technology (which is Confidential Information of Relvy); (b) Customer Data and Customer Technology (which is Confidential Information of Customer); (c) any information of a party that is disclosed in writing or orally and is designated as Confidential or Proprietary at time of disclosure (and, for oral disclosures, summarized in writing within 30 days of initial disclosure and delivered in written summary form to the receiving party), or that, due to the nature of the information or circumstances of disclosure, receiving party would understand it to be disclosing party’s confidential information; and (d) the specific terms of this Agreement, any Use Authorization, any SOW, and any amendment or attachment to any of these, between the parties (which will be deemed Confidential Information of both parties). Confidential Information excludes any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by receiving party; (ii) was already rightfully in receiving party’s possession, without restriction on use or disclosure, when receiving party received it under this Agreement; (iii) is independently developed by receiving party without use of disclosing party’s Confidential Information; or (iv) was or is rightfully obtained by receiving party, without restriction on use or disclosure, from a third party not under a duty of confidentiality to disclosing party.
1.5 “Customer Data” means electronic data uploaded by or for Customer or Customer’s agents, employees, or contractors, and processed in the Relvy Service, excluding Relvy Core Technology.
1.6 “Customer Technology” means software, methodologies, templates, business processes, documentation, or other material originally authored, invented, or otherwise created by Customer (or on Customer’s behalf, other than by Relvy or at Relvy’s direction) for use with the Master Service, excluding Relvy Core Technology.
1.7 “Deliverable” means anything that is created by or on behalf of Relvy for Customer in the performance of Professional Services.
1.8 “Documentation” means the then-current Relvy product documentation relating to the operation and use of the Master Service or Ancillary Software published by Relvy at https://relvy.ai/docs or its successor website. Documentation includes technical program or interface documentation, user manuals, operating instructions, and release notes.
1.9 “Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.
1.10 “Law” means any applicable law, rule, statute, decree, decision, order, regulation, judgment, code, and requirement of any government authority (federal, state, local, or international) having jurisdiction.
1.11 “Newly Created IP” means Intellectual Property Rights in the inventions or works of authorship that are made by Relvy specifically for Customer in the course of performing Professional Services forCustomer that are expressly identified as “Newly Created IP” in an SOW, excluding Relvy Core Technology.
1.12 “Product Overview” means Relvy’s published description of its products and their functionalities, solely to the extent attached to or expressly referenced in a Use Authorization.
1.13 “Professional Services'' means any consulting, development, or educational services provided by or on behalf of Relvy pursuant to an agreed SOW or Service Description.
1.14 “Service Description” means the written description for a packaged Professional Service, attached to or referenced in a Use Authorization.
1.15 “Relvy Core Technology” means: (a) the Master Service, Ancillary Software, Documentation, and technology and methodologies (including products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects, and documentation) created by or for, or licensed to, Relvy; and (b) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals.
1.16 “Relvy Products” means, collectively, the Master Service, Ancillary Software, Documentation, and Deliverables.
1.17 “SOW” means a statement of work that describes scoped Professional Services.
1.18 “Master Service” means the Relvy software-as-a-service offering ordered by Customer under a Use Authorization.
1.19 “Master Term” means the period of authorized access to and use of the Master Service, as set forth in a Use Authorization.
1.20 “Use Authorization” means a written document provided to Customer specifying the services that Customer has purchased, along with the term and scope of the authorized use thereof.
2. ACCESS AND USE RIGHTS; RESTRICTIONS; PROVISION OF PROFESSIONAL SERVICES
2.1 ACCESS AND USE RIGHTS. For each Master Term, Relvy grants the access and use rights set forth in this Section 2 for the Relvy Core Technology described in that Use Authorization.
2.1.1. Master SERVICE. Subject to the terms of this Agreement, Relvy authorizes Customer to access and use the Master Service during the Master Term stated in the applicable Use Authorization, solely for its internal business purposes in accordance with the Documentation. Customer will not otherwise access or use the Master Service in a manner that exceeds Customer’s authorized access and use rights as set forth in this Agreement and the applicable Use Authorization.
2.1.2. ANCILLARY SOFTWARE. Relvy grants Customer a limited, personal, worldwide, non sublicensable, non-transferable (except as set forth in Section 12.1 (Assignment)), non-exclusive, royalty-free license during the Master Term to install and execute Ancillary Software on machines operated by or for Customer, solely to facilitate Customer’s authorized access to and use of the Master Service.
2.2 RESTRICTIONS. With respect to the Relvy Core Technology, Customer will not (and will not permit others to): (a) use it in excess of contractual usage limits (including as set forth in a Use Authorization), or in a manner that circumvents usage limits or technological access control measures; (b) license, sub-license, sell, re sell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties, except as may otherwise be expressly stated in a Use Authorization; (c) access it for the purpose of developing or operating products or services for third-parties in competition with the Relvy Core Technology; (d) disassemble, reverse engineer, or decompile it; (e) copy, create derivative works based on, or otherwise modify it, except as may be otherwise expressly stated in this Agreement; (f) remove or modify a copyright or other proprietary rights notice in it; (g) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other Intellectual Property Right (including the rights of publicity) without first obtaining permission of the owner; (h) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; or (i) access or disable any Relvy or third-party data, software, or network (other than Customer’s instance of the Master Service under this Agreement). Before Customer engages in any of the foregoing acts that it believes it may be entitled to, it will provide Relvy with 30-days’ prior notice to legalnotices@relvy.ai, and reasonably requested information to allow Relvy to assess Customer’s claim. Relvy may, in its discretion, provide alternatives that reduce adverse impacts on Relvy’s Intellectual Property Rights or other rights.
2.3 PROVISION OF PROFESSIONAL SERVICES. Customer and Relvy may enter into one or more SOWs or Use Authorizations subject to this Agreement, and which may incorporate one or more Service Descriptions for the provision of Professional Services. Relvy will perform the Professional Services,subject to the fulfillment of any responsibilities and payments due from Customer, as stated in the SOW or the Use Authorization.
3. ORDERING
3.1 RELVY ORDERS. Customer shall order and purchase the Master Service and Professional Services directly from Relvy pursuant to a separate agreement specifying price, payment and other commercial terms or as purchased on Relvy’s website. For each order not purchased on Relvy’s website, Relvy will provide Customer with a Master Form for Customer to sign and return to Relvy. If Master Service is purchased by Customer on Relvy’s website, if now, Relvy will have no obligation to provide services unless and until it has received a Master Form signed by the Customer. For any mutually agreed changes, Customer shall sign an addendum to this Agreement setting forth any changes in pricing, payment and other commercial terms between Customer and Relvy.
3.2 USE VERIFICATION. Relvy may remotely review Customer’s use of the Master Service, and on Relvy’s written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement, and access to and use of the Master Service. If Relvy or Relvy determines that Customer has exceeded its permitted access and use rights to the Master Service, Relvy will notify Customer and within 30 days thereafter Customer shall either: (a) disable any unpermitted use, or (b) purchase additional Masters commensurate with Customer’s actual use.
4. INTELLECTUAL PROPERTY
4.1 Relvy OWNERSHIP. As between the parties, Relvy and its licensors exclusively own all right, title, and interest in and to all Intellectual Property Rights in the Relvy Core Technology, notwithstanding anything in this Agreement purportedly to the contrary. Except for the access and use rights, and licenses expressly granted in Section 2 (Access and Use Rights; Restrictions; Provision of Professional Services) of this Agreement, Relvy, on behalf of itself and its licensors, reserves all rights in the Relvy Core Technology and does not grant Customer any rights (express, implied, by estoppel, through exhaustion, or otherwise). Any Relvy Core Technology delivered to Customer or to which Customer is given access shall not be deemed to have been sold, even if, for convenience, Relvy makes reference to words such as “sale” or “purchase” in the applicable Use Authorization or other documents.
4.2 CUSTOMER OWNERSHIP. As between the parties, Customer and its licensors will retain all right, title, and interest in and to all Intellectual Property Rights in Customer Data and Customer Technology. Customer hereby grants to Relvy a royalty-free, fully-paid, non-exclusive, non-transferrable (except as set forth in Section 12.1 (Assignment)), worldwide, right to use Customer Data and Customer Technology solely to provide and support the Relvy Products.
4.3 FEEDBACK. Relvy encourages customers to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Relvy Products (collectively, “Feedback”). If Customer provides such Feedback, Customer grants to Relvy a royalty-free, fully paid, sub licensable, transferable (notwithstanding Section 12.1 (Assignment)), non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Feedback (including by incorporation of such Feedback into Relvy Core Technology) without restriction.
4.4 PROFESSIONAL SERVICES. Subject to this Section 4.4, Relvy assigns (and in the future is deemed to have assigned) to Customer any Newly Created IP upon payment in full by Customer for the Professional Service under which the Newly Created IP was created. If any Relvy Core Technology is incorporated into a Deliverable, Relvy grants to Customer a non-exclusive, royalty-free, non-transferable (except as set forth in Section 12.1 (Assignment)), non-sublicensable worldwide license to use the Relvy Core Technology incorporated into the Deliverable inconnection with the Master Service as contemplated under this Agreement during the applicable Master Term. Nothing in this Agreement shall be deemed to restrict or limit Relvy’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Professional Services.
5. WARRANTIES; DISCLAIMER OF WARRANTIES
5.1 LIMITED MASTER SERVICE WARRANTY. Relvy warrants that, during the Master Term, Customer’s production instance of the Master Service will materially conform to the Product Overview. To submit a warranty claim under this Section 5.1, Customer will submit a support request to resolve the non-conformity as provided in the Master Service Guide. If the non-conformity persists without relief more than 30 days after notice of a warranty claim provided to Relvy under this Section 5.1, then Customer may terminate the affected Master Service, and submit to Relvy a claim for refund to Customer for any prepaid Master fees covering that part of the applicable Master Term for the affected Master Service remaining after the effective date of termination. Notwithstanding the foregoing, this warranty will not apply to any non-conformity due to a modification of or defect in the Master Service that is made or caused by any person other than Relvy or a person acting at Relvy’s direction. This Section 5.1 sets forth Customer’s exclusive rights and remedies (and Relvy’s sole liability) in connection with this warranty.
5.2 LIMITED PROFESSIONAL SERVICES WARRANTY. Relvy warrants that the Professional Services will be performed in a competent and workmanlike manner, in accordance with accepted industry standards and practices and all material requirements set forth in the SOW or Service Description. Customers will notify Relvy of any breach within 30 days after performance of the non-conforming Professional Services. On receipt of such notice, Relvy, at its option, will either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or will terminate the affected Professional Services, whereupon Customer may submit to Relvy a claim for a refund of any any amounts paid for the nonconforming Professional Services. This Section 5.2 sets forth Customer’s exclusive rights and remedies (and Relvy’s sole liability) in connection with this warranty.
5.3 DISCLAIMER OF WARRANTIES. Except for the warranties expressly stated in this Section 5, to the maximum extent allowed by Law, Relvy disclaims all warranties of any kind (express, implied, statutory, or otherwise, oral or written, including warranties of merchantability, accuracy, title, non infringement, or fitness for a particular purpose, and any warranties arising from usage of trade, course of dealing, or course of performance). Without limiting the foregoing, Relvy specifically does not warrant that the Relvy Products will meet the requirements of Customer or others or will be accurate or operate without interruption or error. Customer acknowledges that in entering this Agreement, it has not relied on any promise, warranty, or representation not expressly set forth in this Agreement.
6. CONFIDENTIAL INFORMATION
6.1 CONFIDENTIALITY OBLIGATIONS. The recipient of Confidential Information will: (a) at all times protect it from unauthorized disclosure with the same degree of care that it uses to protect its own confidential information, and in no event use less than reasonable care; and (b) not use it except to the extent necessary to exercise rights or fulfill obligations under this Agreement. Each party will limit the disclosure of the other party’s Confidential Information To those of its employees and contractors and the employees and contractors of its Affiliates with a need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement, and then only to employees and contractors subject to binding disclosure and use restrictions at least as protective as those in this Agreement. Each party’s obligations under this Section 6 will remain in effect during, and for three years after termination of, this Agreement. Receiving party will, at disclosing party’s request, return all originals, copies, reproductions, and summaries of Confidential Information and other tangible materials and devices provided to the receiving party as Confidential Information, or at disclosing party’s option, certified destruction of the same. Provisions for return of Customer Data are set forth in Section 11.2 (Return of Customer Data).
6.2 THIRD PARTY REQUESTS. This Agreement will not be construed to prevent receiving party from disclosing the disclosing party’s Confidential Information to a court, or governmental body pursuant to a valid court order, Law, subpoena, or regulation, provided that the receiving party: (a) gives prompt notice (or the maximum notice permitted under Law) before making the disclosure, unless prohibited by Law; (b) provides reasonable assistance to disclosing party in any lawful efforts by disclosing party to resist or limit the disclosure of such Confidential Information; and (c) discloses only that portion of disclosing party’s Confidential Information that is legally required to be disclosed. In addition, the receiving party will cooperate and assist the disclosing party, at disclosing party’s cost, in relation to any such request and any response to any such communication.
7. INDEMNIFICATION
7.1 BY Relvy.
7.1.1. Relvy OBLIGATION. Subject to the limitations in this Section 7, Relvy will: (a) defend Customer, and it's and their officers, directors, and employees against any Claim: (i) to the extent alleging that any Relvy CoreTechnology accessed or used in accordance with this Agreement infringes any third party patent, copyright, or trademark, or misappropriate any third-party trade secret; or (ii) to the extent alleging that Relvy’s personnel when onsite at Customer’s premises caused death, bodily harm,or damage to tangible personal property due to their negligence or willful misconduct; and (b) pay any settlement amount or any court ordered award of damages,under the forgoing subsections (a)(i) and (ii) to the extent arising from suchClaim.
7.1.2. MITIGATION. To the extent any Claim alleges any part of the Relvy Core Technology infringe any third-party patent, copyright, or trademark,or misappropriate any third-party trade secret, Relvy may: (a) contest the Claim; (b) obtain permission from the claimant for Customer’s continued use of its instance of the Master Service or any applicable Relvy Core Technology; (c) avoid such Claim by replacing or modifying Customer’s access to and use of its instance of the Master Service or any applicable Relvy Core Technology as long as Relvy provides a substantially similar Master Service; or, if Relvy determines the foregoing (a), (b), and (c) are not commercially practicable, then (d) terminate Customer’s access to and use of the affected Master Service on 60-days’ prior notice, whereupon Customer may submit to Relvy a claim for a refund of any prepaid Master fees covering any prepaid Master fees covering that part of the applicable Master Term for such Master Service remaining after the effective date of termination.
7.1.3. LIMITATIONS. Notwithstanding the above, Relvy will have no obligation or liability for any Claim under Section 7.1.1(a)(i) to the extent arising in whole or in part from: (a) any access to or use of any Relvy Core Technology not expressly authorized under this Agreement, to the extent the Claim would have been avoided without such unauthorized access or use; (b) Customer Data or Customer Technology; or (c) access to or use of the Relvy Core Technology: (i) in violation of Law; (ii) after termination under Section 7.1.2(d);
(iii) as modified to Customer’s specifications or by anyone other than Relvy or its contractors, if the Claim would have been avoided but for such modifications; or (iv) combined with anything not provided by Relvy, if the Claim would have been avoided but for such combination.
7.2 CUSTOMER OBLIGATION. Customer will: (a) defend Relvy and Relvy Affiliates, and its and their officers, directors, and employees against any Claim to the extent alleging that Customer Data, Customer Technology, or a modification to any Relvy Core Technology made to Customer’s specifications or otherwise made by or on behalf of Customer by any person other than Relvy or a person acting at Relvy’s direction (but only if the Claim would have been avoided by use of the unmodified Relvy Core Technology), infringes any patent, copyright, or trademark, misappropriates any third-party trade secret, or violates any third
party privacy rights; and (b) pay any settlement amount or any court-ordered award of damages, under the foregoing subsection (a) to the extent arising from such Claim.
7.3 PROCESS. The obligations of Relvy and Customer under Sections 7.1 and 7.2 are conditioned on the indemnified party (a) notifying the indemnifying party promptly in writing of any actual or threatened Claim, (b) the indemnified party giving the indemnifying party sole control of the defense of such Claim and of any related settlement negotiations, and (c) the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense. Neither party will stipulate, acknowledge, or admit fault or liability on the other’s part without the other’s prior, written consent. The indemnifying party will not publicize any settlement without the indemnified party’s prior, written consent. To the extent the parties perform as required, this Section 7 states each party’s entire liability and the other party’s exclusive remedy for third-party claims and third-party actions.
8. LIMITED LIABILITY
Relvy shall have no liability for any refund that, in accordance with the terms of this Agreement, is to be paid by RelvyA. To the extent permitted by Law, each party’s total, cumulative liability arising out of or related to this Agreement and the products and services provided under it, whether based on contract, tort (including negligence), or any other legal or equitable theory, will be limited to the amounts paid by Customer for use of the products or provision of the services giving rise to the claim during the 12-month period preceding the first event giving rise to liability. The existence of more than one claim will not enlarge this limit. The foregoing limitation of liability shall not apply to: (a) Customer’s obligation to pay for products, services or taxes; (b) a party’s obligations in Section 7 (Indemnification); and (c) infringement by a party of the other party’s Intellectual Property Rights.
9. EXCLUDED DAMAGES
To the extent permitted by Law, neither Relvy nor Customer will be liable to the other or any third party for lost profits (direct or indirect) or loss of use or data or for any incidental, other consequential, punitive, special, or exemplary damages (including damage to business, reputation, or goodwill), or indirect damages of any type however caused, whether by breach of warranty, breach of contract, in tort (including negligence), or any other legal or equitable cause of action, even if such party has been advised of such damages in advance or if such damages were foreseeable. The foregoing exclusions shall not apply to:
(a) payments to a third party arising from a party’s obligations under Section 7 (Indemnification); and (b) infringement by a party of the other party’s Intellectual Property Rights.
10. GROSS NEGLIGENCE; WILLFUL MISCONDUCT
As provided by Law, nothing herein shall be intended to limit a party’s liability in an action in tort, separate and distinct from a cause of action for breach of this Agreement, for the party’s gross negligence or willful misconduct.
11. TERM AND TERMINATION
11.1 TERMINATION. This Agreement begins on the Effective Date and continues until terminated under its terms. Each party may terminate this Agreement in its entirety: (a) on 30 days’ prior notice to the other, if at the time of notice there are no Use Authorizations in effect; (b) immediately on notice if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within 60 days of its commencement or an assignment for the benefit of creditors; or (c) immediately on notice if the other party materially breaches this Agreement and does not cure such breach within 30 days after the other party’s receipt of notice of the breach. Either party may terminate a Use Authorization or SOW on notice if the other party materially breaches this Agreement or the applicable Use Authorization or SOW for the affected service and does not cure the breach within 30 days after receiving notice of the breach from the non-breaching party. Professional Services are separately ordered from the Master Service and are not required for use of the Master Service. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Master Service even if the services are enumerated in the same Use Authorization.
11.1.1. EFFECT OF TERMINATION OF Master SERVICE. On termination or expiration of the Master Service, Customer will stop accessing and using, and Relvy will stop providing, the Master Service and all related rights granted to Customer in this Agreement will terminate immediately, automatically, and without notice. Customer, within 30 days after the effective date of termination by Customer for Relvy’s breach, submit to Relvy a claim for refund for any prepaid fees paid to Relvy covering that part of the Master Term for the affected Master Service, if any, remaining after the effective date of termination. Within 30 days after the effective date of termination by Relvy for Customer’s breach, Customer shall pay all remaining amounts for the Master Term applicable to the Master Service covering the remainder of the Master Term regardless of the due dates specified in an applicable ordering document between Relvy and Customer.
11.2 RETURN OF CUSTOMER DATA. After termination or expiration of this Agreement or the applicable Master Service, upon Customer’s written request, Relvy will provide any Customer Data in the Master Service to Customer in Relvy’s standard database export format at no additional charge. Customer must submit such request to Relvy within 45 days after termination or expiration of this Agreement or the Master Service. Relvy is not obligated to maintain or provide any Customer Data after such a 45- day period and will, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, and delete Customer’s instances of the Master Service.
11.3 SURVIVAL. Sections 2.2 (Restrictions), 4 (Intellectual Property), 5 (Warranties; Disclaimer of Warranties) (solely in accordance with its terms), 6 (Confidential Information) through 10 (Gross Negligence; Willful Misconduct), 11 (Term and Termination) (solely in accordance with its terms), and 12 (General Provisions), together with any other terms required for their construction or enforcement, will survive termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 ASSIGNMENT. Neither party may assign or novate its rights or obligations under this Agreement, by operation of law or otherwise (any of the foregoing, “Assign”), without the other party’s prior written consent. Notwithstanding the foregoing, on notice and without the other’s consent: (a) either party may in connection with a merger, reorganization, or sale of all or substantially all of such party’s assets or equity, Assign this Agreement in its entirety to such party’s successor; and (b) Relvy may Assign this Agreement in its entirety to any Relvy Affiliate. Any attempted or purported Assignment in violation of this Section 12.1 will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
12.2 COMPLIANCE WITH LAWS. Relvy will comply with all Laws applicable to its provision under the Agreement of the Relvy Products, including those applicable to privacy and security of personal information(including mandatory trans-border data transfers and mandatory data breach notification requirements), but excluding Laws specifically applicable to Customer and its industry not generally applicable to information technology service providers regardless of industry. Customer will comply with all Laws applicable to its use of the Relvy Products, including those applicable to collection and processing of Customer Data in Relvy systems through the Master Service. Customer agrees to provide any required disclosures to and obtain any required consents for the transfer of Customer Data to Relvy.
12.3 EXPORT COMPLIANCE. Each party will comply with local and foreign export control Laws, including U.S. export control Laws. Customer acknowledges that the Relvy Products are subject to U.S. Export Administration Regulations (“EAR”) and that Customer will comply with EAR. Without limiting the foregoing, Customer represents and warrants that: (a) it is not located in, and will not use any Relvy Products from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Customer will not use the Relvy Products in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) Customer is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local Laws that may impact Customer’s right to import, export, or use Relvy Products or any of them.
12.4 US GOVERNMENT RIGHTS. Relvy software is commercial computer software (as defined in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases) and Relvy services are commercial items. If the software is licensed or services acquired by or on behalf of a civilian agency, Relvy provides the software, its documentation, and any other technical data subject to this Agreement consistent with FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data). If software is licensed or services acquired by or on behalf of any DOD agency, Relvy provides the software, its documentation, and any other technical data subject to this Agreement consistent with DFARS 227.7202-3. If this is a DOD prime contract or DOD subcontract, the DOD agency Customer may acquire additional rights in technical data under DFARS 252.227- 7015(b). This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
12.5 NOTICE. Except as otherwise provided in this Agreement, all notices will be in writing and deemed given on: (a) personal delivery; (b) when received by the addressee if sent by a recognized overnight courier (receipt requested); (c) the third business day after mailing; or (d) the first business day after sending by email with confirmation of receipt, except that email will not be sufficient for notices regarding a Claim or alleged breach. Notices will be sent as set forth on the first page of this Agreement or as subsequently updated in writing.
12.6 FORCE MAJEURE. Relvy is not, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing the Master Service or any Professional Services, when and to the extent such failure or delay is caused by or results from acts beyond Relvy’s reasonable control, including: strikes, lock-outs, or other industrial disputes; trespass, sabotage, theft or other criminal acts export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Relvy’s local network; breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a “Force Majeure Event”). Relvy will use reasonable efforts to mitigate the effects of such Force Majeure Events.
12.7 HIGH RISK ACTIVITY. The Relvy Products are not designed for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage (each, a “High Risk Activity”). Relvy, its licensors, and suppliers expressly disclaim all warranties of fitness for any such use.
12.8 EXECUTION. This Agreement may be executed in counterparts, by electronic means to accurately send images, such as via email, or by electronic signature service. Neither party will contest the Agreement’s validity solely because a signature was faxed or sent through other permitted electronic means. Each party will deliver to the other an original executed copy of the Agreement promptly after execution.
12.9 WAIVER AND AMENDMENT. Failure by a party to enforce any part of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. A waiver of any right is effective only if in a writing signed by an authorized representative of the waiving party. Any modification of this Agreement must be in writing and signed by authorized representatives of both parties.
12.10 SEVERABILITY. If any term of this Agreement is held invalid, unenforceable, or void by a court of competent jurisdiction, such term will be enforced to the maximum extent permissible, such holding will not affect the remaining terms, and the invalid, unenforceable, or void term will be deemed amended or replaced by a valid, legal, and enforceable term that matches the intent of the original language as closely as possible.
12.11 RELATIONSHIP. The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership,joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, expressed or implied, in the other party’s name or on its behalf. No third-party is a third-party beneficiary of, or liable under, this Agreement, and no third-party is responsible for any obligations or liability arising out of Customer’s use of the Relvy Core Technology.
12.12 GOVERNING LAW; JURISDICTION AND VENUE. If Customer is located in the United States, Canada, or Mexico this Agreement will be governed by the Laws of the State of California, without regard to its conflict of laws principles. The parties irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Santa Clara County, California, for the purposes of adjudicating any dispute arising out of or related to this Agreement. Each party expressly consents to service of process by registered mail. To the extent permitted byLaw, choice of law rules and the United Nations Convention On Contracts for the International Sale of Goods will not apply. Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such party’s Intellectual Property Rights.
12.13 EQUITABLE REMEDIES. The receiving party’s disclosure of Confidential Information except as provided in this Agreement, or a party’s infringement or misappropriation of the other party’s Intellectual Property Rights may result in irreparable injury for which a remedy in money damages may be inadequate. In the event of such actual or threatened disclosure, infringement or misappropriation, disclosing party may be entitled to seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to remedies otherwise available to disclosing party at law or inequity.
12.14 CONSTRUCTION. Relvy is obligated to provide Relvy Products only in the English language, unless otherwise agreed in writing. The parties have expressly requested that this Agreement and all related documents be drafted in English. Section headings are for convenience only and are not to be used in interpreting this Agreement. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. Lists of examples following “including”, “e.g.”, “such as”, or “for example” are interpreted to include “without limitation”, unless qualified by words such as “only” or “solely.” Unless stated or context requires otherwise: (a) all internal references are to this Agreement, its parties, and its Exhibits; (b) “days” means calendar days; (c) “may” means that the applicable party has a right, but not a concomitant duty; (d) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (e) “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured; (f) the word “or” will be deemed to be an inclusive “or”; (g) URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at such URLs; (h) a writing is “signed” when it has been hand-signed (i.e., with a pen) or electronically signed using an electronic signature service by duly authorized representatives of both parties; (i) a party’s choices, elections, and determinations under this Agreement are in its sole discretion; (j) the singular includes the plural and vice versa; (k) a reference to a document includes any amendment, replacement, or novation of it; and (m) a reference to a thing includes a part of that thing (i.e., is interpreted to include “in whole or in part”).
12.15 ENTIRETY. This Agreement (together with the Use Authorizations, Product Overviews, SOWs, and Service Descriptions, all of which are also deemed incorporated by this reference) is the parties’ entire agreement regarding its subject matter and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings, negotiations, letters of intent, and proposals, with respect to such subjects. The terms of this Agreement apply to the exclusion of any other terms Customer seeks to impose or incorporate, or that may be implied by trade, custom, practice, or course of dealing. Customer acknowledges it has not relied on any statement, promise, or representation made or given by or on behalf of Relvy that is not expressly stated in this Agreement. Customer’s orders are not contingent, and Customer has not relied on the delivery of any future functionality regardless of any verbal or written communication about Relvy’s possible future plans.
