This Master Subscription Agreement (“Agreement”) is made as of the later of the two signature dates set forth below (“Effective Date”), by and between Carbon6 Technologies, Inc., a Delaware corporation, and Customer (as defined on the Sales Order).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PRODUCTS OFFERED BY CARBON6 TECHNOLOGIES, INC. OR ANY OF ITS AFFILIATES WHICH REFERENCE THIS AGREEMENT. YOU OR THE ENTITY YOU REPRESENT AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER. CUSTOMER’S EXECUTION OF A SALES ORDER (DEFINED BELOW) WHICH REFERENCES THIS AGREEMENT REPRESENTS CUSTOMER’S OFFER TO ORDER THE PRODUCTS LISTED THEREIN, AND CARBON6’S ISSUANCE OF THE INVOICE UNDER A SALES ORDER AND/OR THE ACTIVATION OF THE PRODUCTS SET FORTH IN A SALES ORDER SHALL CONSTITUTE CARBON6’S ACCEPTANCE OF SUCH OFFER. Capitalized terms not defined herein shall have the meaning set forth on the Sales Order.
1.1 “Affiliate” means all persons which control, are controlled by or are under common control with a party. For purposes of this Agreement, “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership or voting securities, by contact or otherwise.
1.2 “Authorized Users” means users granted access to use the Product on an individual basis(i.e., each user will be an individual assigned a unique login ID), the number of which shall be specified on the applicable Sales Order.
1.3 "Carbon6" means Carbon6 Technologies, Inc., a Delaware corporation, and each of its Affiliates that offer the Products under an applicable Sales Order.
1.4 “Customer Data” means all of the Customer's data processed or generated by the Product. As between Carbon6 and Customer, all Customer Data is deemed Customer’s property.
1.5 “Data source” means a data source accessed and used by the Product to generate its output. Customer acknowledges that the Product is not a system of record, and all Customer source data remains in the Data sources from which the data processed by the Product is sourced.1
1.6 “Product” means the Software and Solutions licensed under the applicable Sales Order.
1.7 “Software and Solutions” means Carbon6’s proprietary software and support that may be made available to Customer pursuant to a Sales Order.
Carbon6 Technologies, Inc. July 2023 14415179v.1
2. LICENSE GRANT, RESTRICTIONS, AND PROHIBITIONS
2.1 License Grant. The Product(s) to be provided by Carbon6 under this Agreement will be set forth in one or more sales orders (each a “Sales Order”) incorporating this Agreement by reference. Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, Carbon6 grants to Customer and its Affiliates a worldwide, royalty-free, non-exclusive, time-limited, non-transferrable (except as provided in Section 13.2), limited license to the Software and Solutions or to access and/or use the Product (as applicable) during the Subscription Period (as defined herein) solely for Customer’s internal business purposes (except as otherwise provided in an applicable Sales Order and/or the Product-Specific Terms (as defined herein)). Customer may authorize subcontractors to access and use the Products as Authorized Users contemplated by the Sales Order and provided that Customer is responsible for all acts and omissions of the subcontractors and all other Authorized Users.
2.2 License Restrictions. Customer agrees to limit the use of the Product to the licensing metrics set forth in the applicable Sales Order and this Agreement. Without limiting the foregoing, Customer shall not, and shall not permit any third party to (except as expressly provided in applicable Product-Specific Terms): (1) resell, sublicense, lease, time-share or otherwise make a Product available to a third-party other than its Affiliates and authorized subcontractors; (2) attempt to gain unauthorized access to the Products or disrupt the performance of the Products; (3) modify, copy or make derivative works based on the Products; (4) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Products; or (5) access the Products to build a competitive product or service or copy its features or user interface.
2.3 License Prohibitions. Except as expressly provided in an applicable Product-Specific Terms, Customer agrees not to use the Product, or permit the Products to be used for the following purposes: (1) product benchmarking or other comparative analysis for any external use; (2) to violate applicable laws; (3) to propagate any virus, worms, Trojan horses or other programming routines intended to damage the Products or any systems or data; or (4) filing for intellectual property rights relating to the Product.
2.4 Evaluation Subscriptions. If Customer is provided access to the Product solely for purposes of considering the purchase of a subscription to the Product, using the Product through the Free Trial, or if a Sales Order specifies that an evaluation subscription is being granted thereunder (“Evaluations''), Carbon6 hereby grants to Customer, and Customer accepts, a nonexclusive, non-transferable, non-sub-licensable, non-production, revocable, limited right to use the Product, free of charge, for the sole purpose of evaluating whether to purchase a Product subscription, subject to the terms hereof. If applicable, the evaluation period is defined in the Sales Order. If Customer is a current subscriber to the Product who has agreed to participate in testing (a “Beta Test'') of a pending release of the Product or certain features or functionality of the Product prior to general release for purposes of identifying issues and providing Feedback (as defined below), the Beta Test term is limited to the period communicated by Carbon6 to Customer, unless such period is extended at Carbon6’s sole discretion. UNDER EVALUATIONS AND BETA TESTS, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS'' BASIS, WITHOUT REPRESENTATION, WARRANTY OR INDEMNITY OF ANY KIND.
2.5 Carbon6 Trademark License. Carbon6 hereby grants Customer a non-exclusive, royalty-free, non-transferable (subject to Section 13.2) license, without the right to grant sublicenses, to display and otherwise use the Carbon6 Marks (as defined below) solely in connection with the use of the Products and as otherwise contemplated by Section 3.2, if applicable. Customer acknowledges and agrees that (i) the Carbon6 Marks represent the high quality and image of Carbon6 and are valuable assets and must continue to be associated only with high-quality products and services in order to maintain their value; (ii) all goodwill and improved reputation generated by Customer's use of the Carbon6 Marks inure solely to the benefit of Carbon6; (iii) Customer will use the Carbon6 Marks only in accordance with good trademark practice; and (iv) Customer is familiar with the high standards, quality, style and image associated with Carbon6 and its use of the Carbon6 Marks. Customer's use of the Carbon6 Marks shall in all respects and at all times be conducted, advertised and promoted in a manner consistent with such standards.
3. PRODUCT TERMS.
3.1 Product-Specific Terms. Subscriptions for use of the Product embedded in Customer’s products provided to third parties are subject to Carbon6’s Product-Specific Terms of Service set forth at https://www.carbon6.io/ and/or wholly owned subsidiary websites, if applicable, as such terms are amended from time to time.
3.2 White Labeling. Customers shall be authorized to White Label the Product only if “Co-Branded White Labeling” or “Full White Labeling” appears on the applicable Sales Order or other signed agreement. “White Label'' shall mean that Customer is authorized to use the Product without displaying some or all of the Carbon6’s Trademarks and branding and/or including its own branding. If the Sales Order specifies “Co-Branded White Labeling” Customer may, through use of the tools provided by Carbon6 for such purpose, White Label the Product and must state in its documentation and marketing materials that the Bundled Product or such service is “powered by Carbon6”. If the Sales Order specifies “Full White Labeling, Customer may, through use of the tools provided by Carbon6 for such purpose, White Label the Product and is not required to retain any Carbon6 Trademarks or branding in the Product.
4.1 Privacy Statement. Carbon6’s processing of personal data included in the Customer Data shall be subject to the Privacy Statement in effect at the time of this Agreement available at https://www.carbon6.io/legal. Carbon6 reserves the right to update the Privacy Statement from time to time so long as there is no material degradation to the overall protections set forth therein.
5. SUPPORT SERVICES AND PROFESSIONAL SERVICES
5.1 Support Services. Carbon6 will provide support and maintenance services (“Support Services”) to Customer in accordance with the support terms set forth at https://www.carbon6.io/ and/or wholly owned subsidiary websites, which may be updated from time to time provided that such updates do not materially degrade the support terms when taken as a whole.
5.2 Professional Services. The scope, fees and terms of the professional services (if any) to be provided by Carbon6 to Customer (the “Professional Services”) shall be set forth on the applicable Sales Order.
6. FEES & PAYMENT TERMS
6.1 Fees. All fees shall be as specified in the Sales Order or at https://www.carbon6.io/ and/or wholly owned subsidiary websites, which may be updated from time to time
6.2 Payment. Unless otherwise specified in the applicable Sales Order, all payments shall be made in the currency specified in the Sales Order within ten (10) days of the date of invoice. Except as expressly provided herein, all payments made hereunder are non-refundable and non cancellable. Payments of amounts made under this Agreement after their due date will incur interest at a rate equal to one percent (1%) per month (i.e., 12% per annum) or the highest rate permitted by applicable law, whichever is less. Further, if any amount owing by Customer under this Agreement is fifteen (15) or more days overdue, Carbon6 may, without limiting its other rights and remedies, suspend its performance under this Agreement. In the event Customer disputes an invoiced amount in good faith, Customer shall notify Carbon6 of such dispute in writing, providing any relevant information regarding the circumstances of the dispute within 30 days of the date of receipt of invoice. The parties shall work together promptly and in good faith to resolve such dispute. Customer shall not be obligated to pay any amount so disputed in good faith until such dispute is resolved; provided, however, Customer shall remain obligated to pay all other invoiced amounts.
6.3 Audit. At Carbon6’s discretion and upon reasonable advance notice, Carbon6 reserves the right to conduct periodic reviews and audits of the Products and Customer's use hereunder to verify compliance with the terms of this Agreement.
6.4 Taxes. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges (excluding income taxes or similar taxes of Carbon6) that by applicable laws must be added to Carbon6's fees, which shall be itemized on Carbon6's invoices and payable by Customer hereunder.
7. PROPRIETARY RIGHTS; RESTRICTIONS
7.1 Ownership by Carbon6. As between Customer and Carbon6, Carbon6 is the sole owner of all intellectual property rights to all materials provided by Carbon6 hereunder, including the Documentation, Products, Software, and any derivatives thereof, as well as Carbon6’s Confidential Information and Carbon6’s names, trademarks, trade names and logos (“Carbon6 Marks''), and Customer acknowledges that it has no rights thereto except as expressly set forth herein. Nothing in this Agreement or in the parties’ dealings related to this Agreement will restrict Carbon6’s right to use, disclose, publish, or otherwise exploit Feedback (as defined below), without compensating or crediting Customer or the individual providing such Feedback. No Feedback shall be deemed Customer Confidential Information to the extent that such Feedback relates to Carbon6’s products and services. “Feedback” means any suggestion or idea for improving or modifying the Product. Carbon6 grants no implied rights hereunder, and all rights not expressly granted herein are reserved.
7.2 Product Data. Carbon6 may collect and use system information and information about Customer’s use of the Product (“Product Data”) provided that Carbon6 may incorporate
Product Data in the Product only in an aggregated and anonymized manner such that Customer, Authorized Users, and other natural persons associated with them cannot be identified alone or in conjunction with other data.
8. CONFIDENTIAL INFORMATION.
8.1 Confidential Information. Each party agrees that “Confidential Information” includes, without limitation, all information provided or made accessible by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is either designated as confidential at the time of disclosure or would reasonably be considered, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. For the avoidance of doubt, Carbon6’s Confidential Information includes all non-public product features and information regarding pricing of its products and services. The Receiving Party will use the Disclosing Party’s Confidential Information only in connection with this Agreement and will not disclose it to any third party, except to the Receiving Party’s own employees, directors, consultants, agents and Affiliates who have a need to know, and are subject to non-disclosure obligations with terms no less restrictive than those herein.
8.2 Exclusions. The confidentiality obligations in Section 8.1 will not apply to any information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) is rightfully known by the Receiving Party prior to disclosure by the Disclosing Party; (c) is rightfully obtained by the Receiving Party without restriction from a third party not known by the Receiving Party to be subject to restrictions on disclosure; or (d) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party. Receiving Party may disclose Confidential Information if and only to the extent it is required to be disclosed by law or regulatory or court order, so long as, if permitted under applicable law, Receiving Party provides advance notice to the Disclosing Party as promptly as possible and reasonably cooperates with the Disclosing Party’s efforts to limit or obtain a protective order or other relief regarding such disclosure at Disclosing Party’s expense.
8.3 Injunctive Relief. Both parties hereby agree that the Confidential Information to be disclosed hereunder is of a unique and valuable character, that damages to the Disclosing Party that would result from the unauthorized dissemination of its Confidential Information would be impossible to calculate and that such party agrees that the Disclosing Party has no adequate remedy at law. The parties further agree that the Disclosing Party shall be entitled to obtain injunctive relief (without the posting of any bond or other security) preventing the further use and/or disclosure of any Confidential Information in violation of the terms hereof.
8.4 Return and Destruction. Upon termination of this Agreement, the Receiving Party will, upon written request of the Disclosing Party, promptly destroy or return the Disclosing Party’s Confidential Information and all copies thereof, provided that the Receiving Party shall not be obligated to erase Confidential Information contained in archived computer system backups in accordance with its security and/or disaster recovery procedures, provided further that the Receiving Party will continue to be subject to the confidentiality obligations of this Agreement with respect to any such retained Confidential Information for so long as such Confidential Information is retained.
9. WARRANTY; DISCLAIMER
9.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it has the legal power to enter into this Agreement and to perform its obligations hereunder; (b) it will comply with all applicable laws in its performance hereunder; (c) this Agreement constitutes the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); (d) the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action of such party; and (e) such party has duly executed and delivered this Agreement.
9.2 Customer Representations and Warranties. Customer represents and warrants that it has all legal rights to all Customer Data, including the right to provide Customer Data to Carbon6 in accordance with the terms of this Agreement.
9.3 Carbon6 Warranty. Carbon6 warrants during the Subscription Period and for Customer’s benefit alone that the Product will substantially conform in all material respects with the Sales Order. Customer will provide prompt, written notice of any nonconformity. Carbon6 will: (a) use reasonable efforts to fix, provide a work around or otherwise repair or replace the Software or Solution, as applicable; or (b) if Carbon6 is unable to remedy the nonconformity, terminate the license to the Product and return the subscription fees paid to Carbon6 for the Product for the period commencing from Customer’s notice of nonconformity through the remainder of the applicable Term. This Section 9.3 states Carbon6’s entire obligation and liability and Customer’s sole remedy with respect to breach of warranty under this Agreement.
9.4 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES INCLUDED IN THIS SECTION 9, NEITHER CARBON6 NOR ITS THIRD-PARTY LICENSORS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PRODUCT AND/OR SUPPORT SERVICES OR PROFESSIONAL SERVICES. CARBON6 DISCLAIMS AND EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. CARBON6 DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCT WILL BE UNINTERRUPTED OR THAT THE OPERATION OF THE PRODUCT WILL BE ERROR-FREE OR SECURE OR THAT IT WILL BE COMPATIBLE WITH ALL OF CUSTOMER’S (OR ITS END CUSTOMERS’, IF APPLICABLE) EQUIPMENT OR SOFTWARE CONFIGURATIONS, OR THAT THE PRODUCT IS DESIGNED TO MEET ALL OF CUSTOMER’S BUSINESS REQUIREMENTS. NO CARBON6 DEALER, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY AND ANY OTHER SUCH TERMS OR REPRESENTATIONS SHALL NOT BE BINDING ON CARBON6.
10.1 Carbon6 Indemnity. Subject to Section 10.2, Carbon6 will indemnify and defend Customer and hold Customer harmless against all third party losses awarded by a court of final and competent jurisdiction or pursuant to a settlement agreement signed by Carbon6 arising from actions, proceedings, suits, claims or demands that may be brought or instituted against Customer by any third party that Customer’s use of the Product in accordance with the terms of this Agreement infringes such third party’s intellectual property rights in a country that is a signatory of the Patent Cooperation Treaty (PCT) or which later accedes to the PCT, or in any country that is a signatory of the Berne Convention (“Convention”) or which later accedes to such Convention ("Infringement Claims"). Notwithstanding the foregoing, Carbon6 shall have no liability or obligation hereunder with respect to any Infringement Claim to the extent arising from or related to (a) any use of the Product not in accordance with this Agreement and the Documentation; (b) modifications, adaptations, alterations, or enhancements of the Product not created by or for Carbon6; (c) the combination of the Product with items not supplied by Carbon6 or approved for use with the Product by Carbon6 in the Documentation to the extent such claim would not have arisen but for the combination; or (d) Customer’s continuing use of any version of the Product after an update, modification or replacement of the Product is made available to the Customer and Customer fails to implement within a reasonable period of time. If the Product or part thereof becomes, or in Carbon6’s opinion may become, subject to an Infringement Claim or Customer’s use thereof may be otherwise enjoined, Carbon6 may, at its option, either: (i) procure for Customer the right to continue using the Product; (ii) replace or modify the Product, so that it is non-infringing; or (iii) if neither of the foregoing alternatives is reasonably practical, terminate this Agreement and refund subscription fees prepaid for the unexpired Subscription Period, if any, upon the complete deletion or destruction (and certification of such deletion or destruction) of any Product in Customer’s possession. To the extent permitted by applicable law, this Section 10.1 states Carbon6's entire liability and Customer’s exclusive remedy for infringement.
10.2 Indemnification Procedure. The Customer shall give Carbon6 prompt written notice of any Claim, grant Carbon6 the right to elect to solely control of the defense and/or settlement of any Claim (provided that Carbon6 shall not enter into any settlement that admits liability on behalf of the Customer or imposes any obligations on the Customer without the prior written consent of the Customer, other than payment of amounts indemnified hereunder or, in the case of an Infringement Claim, cessation of use of the allegedly infringing item) and provide reasonable assistance as requested by the Carbon6.
10.3 Customer Indemnification. Customer shall hold Carbon6 and its affiliates harmless from liability to third parties resulting from (a) Customer’s or its Affiliates' negligence or willful misconduct; (b) such third party’s claim that the Customer Data infringes its intellectual property rights; (c) any breach of Customer’s representations, warranties or covenants under this Agreement, a Sales Order or the Terms of Service; or (d) Customer’s use of the Products in violation of this Agreement, the applicable Sales Order or the Terms of Service.
11. LIMITATION OF LIABILITY.
11.1 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE MONETARY OBLIGATION AND LIABILITY TO THE OTHER PARTY OR ANY OTHER PARTY UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE PAYMENTS, WITH RESPECT TO CUSTOMER, PAID OR PAYABLE BY CUSTOMER, OR WITH RESPECT TO CARBON6, PAID BY CUSTOMER TO CARBON6 FOR THE PRODUCT, SUPPORT SERVICES OR PROFESSIONAL SERVICES THAT GAVE RISE TO THE ACTION OR CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS; CUSTOMER’S BREACH OF CARBON6’S INTELLECTUAL PROPERTY RIGHTS; CUSTOMER’S PAYMENT OBLIGATIONS; OR THE INDEMNIFICATION OBLIGATIONS IN SECTION 10. Notwithstanding anything to the contrary in this Agreement, Carbon6 shall have no liability arising from: (i) any disclosure of Customer Data by the Authorized Users or through the functions and settings of the Product under Customer’s control; (ii) claims alleging that Customer Data violates the intellectual property rights of a third party; or (iii) damages or losses, if any, caused by any modification or adaptation made by Customer to a Product without Carbon6’s express prior written consent.
11.2 EXCEPT FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS OR CUSTOMER’S BREACH OF CARBON6’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTIES FOR (A) INDIRECT, SPECIAL, CONSEQUENTIAL, COLLATERAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, OR (B) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, IN EACH CASE EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. TERM; TERMINATION
12.1 Term. The term of this Agreement shall commence on the Effective Date and continue until no Sales Orders remain in effect hereunder, including any Renewal Terms as defined herein, unless otherwise terminated as stated below (the “Term”). The subscription term under a Sales Order (referred to therein as the “Subscription Period”) shall be as set forth in such Sales Order and if no such term is set forth, the Subscription Period shall continue for one (1) year from the effective date of such Sales Order. The Subscription Period granted under each Sales Order shall automatically renew for additional one (1) year terms following the end of each Subscription Period unless either party provides written notice of nonrenewal of such Subscription Period to the other party, not less than ninety (90) days prior the expiration thereof. If Sales Orders are not applicable or implemented, then the Subscription may be canceled at any time, and access to the Software, Services and/or Websites will be available through the end of the pre-paid billing cycle.
12.2 Termination. Either party may terminate this Agreement: (a) at any time, if the other party fails to cure a material breach of any of its obligations hereunder within thirty (30) days after receipt of written notice, with the exception of Customer’s failure to pay applicable fees, which must be cured within five (5) days after receipt of written notice; (b) immediately upon written notice if the other Party commits a non-remediable, material breach or (c) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
12.3 Effect of Termination. Within fifteen (15) days after termination Customer shall irrevocably erase any Software and the Documentation and all copies and portions thereof it may have in its possession, and shall, upon request by Carbon6, provide written certification to Carbon6 that such destruction has been completed. If this Agreement is terminated for Customer’s breach, then all outstanding Sales Orders shall be terminated immediately. Carbon6 will erase all Customer Data in its possession and control within thirty (30) days after the expiration or termination of the Term.
12.4 Survival. Notwithstanding any termination of this Agreement, Sections 7 (Proprietary Rights), 8 (Confidential Information), 10 (Indemnification) (for a period of one (1) year from the effective date of such termination), 11 (Limitation of Liability), 12.3 (Effect of Termination), 13 (General Provisions), shall survive and continue to be in effect in accordance with their terms.
13. GENERAL PROVISIONS
13.1 Entire Agreement. This Agreement (including all Sales Orders), the Terms of Service and the Privacy Statement constitute the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related Customer-issued purchase orders, vendor forms, invoices, policies, confirmation or similar form, even if signed by the parties hereafter, will have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Sales Order, the terms of this Agreement will control unless otherwise explicitly set forth in a Sales Order. This Agreement may be executed in one or more counterparts, each of which will be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy will have the same force and effect as execution of an original, and a facsimile/ electronic signature will be deemed an original and valid signature. No modification, consent or waiver under this Agreement will be effective unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language will be controlling in all respects.
13.2 Assignment. A party to this Agreement may not assign, delegate, or otherwise transfer any or all of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may from time to time assign this Agreement in whole only to: (a) its Affiliates; or (b) an acquirer of all or substantially all of its business or assets; provided that such Affiliate or acquirer assumes all of the obligations hereunder in writing and, in the case of an assignment by Customer, such assignment or acquisition shall not expand the scope of the Product subscription as set forth on the applicable Sales Order nor shall the Product be permitted to be used for any business operations other than as were using the Product immediately prior to such assignment or acquisition.
13.3 Notices. All notices and demands hereunder shall be in writing and shall be delivered to the address of the Receiving Party referenced below (or at such different address as may be designated by such party by written notice to the other party). All notices or demands shall be served by personal service or sent by certified, registered or signed-for mail, return receipt requested, by reputable national or international private express courier, or by electronic transmission, with confirmation received, to the email address specified below, and shall be deemed complete upon receipt: To Carbon6: the address listed in the applicable Sales Order or by email to firstname.lastname@example.org. To Customer: the address and contact information listed in the applicable Sales Order.
13.4 Relationship of the Parties. Customer and Carbon6 shall operate as independent contractors and may only operate as partners, joint venturers, agents or employees of the other with express written consent. Neither party shall have any right or authority or assume or create any obligations or make any representations or warranties on behalf of the other party, whether expressed or implied, or to bind the other party in any respect whatsoever.
13.5 Use of Customer Name. Carbon6 may use Customer’s name, logo, and trademarks (the "Customer Marks") and refer to its relationship with Customer in its business development and marketing efforts. Customer hereby grants Carbon6 and its Affiliates a non-exclusive, royalty-free, non-transferable (subject to Section 13.2) license, without the right to grant sublicenses, to display and otherwise use the Customer Marks solely as contemplated by this Section 13.5.
13.6 Force Majeure. Except for payment obligations, neither party shall have any liability under the Agreement to the extent that the performance of its obligations is delayed, hindered or prevented by an event or circumstance outside the reasonable control of the party, including fire, storm, flood, earthquake, adverse weather conditions, pandemic, explosions, Acts of God, terrorism or the threat thereof, nuclear, chemical or biological contamination, compliance with any law, governmental controls, restrictions or prohibitions general strikes, lock-outs, industrial action or employment dispute not caused by or specific or limited to the affected party, protests, public disorder, general interruptions in communications or power supply, and denial of service attacks (such an event or circumstance, an “Event of Force Majeure”).
13.7 Carbon6 Entities; Governing Law. The Sales Order specifies the applicable Carbon6 entity that is a party to this Agreement in addition to Carbon6. This Agreement and all matters arising out of or in connection with it shall be construed and enforced in accordance with the laws of the State of Delaware.
Carbon6 shall have the right to seek a preliminary, interim or preventative injunction in respect of any breach of its intellectual property rights in any jurisdiction and court. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.