LAST UPDATED: February 26, 2020
THIS SUBSCRIPTION AGREEMENT AND TERMS OF SERVICE (COLLECTIVELY, THE “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT
REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO
SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective between you and PrivCo as of the date you accept this Agreement or execute an ordering document or online order with PrivCo specifying the Services to be provided by PrivCo, including any addenda and supplements thereto referencing this Agreement (an “Order Form”) and shall remain in effect for the term set forth in the Order Form or as otherwise terminated in accordance with the terms of this Agreement (the “Term“). If there is a conflict between this Agreement and the terms of any Order Form, then the terms of the Order Form will govern with respect to such conflict. If you have entered into an Order Form for the use of the PrivCo API (the “API“), then the applicable Order Form and Enterprise API Data License Agreement will govern your use of the API.
“Data” means the data and content regarding privately-owned companies made available by PrivCo to you through the Services, subject to the limitations set forth in an Order Form and more fully described in the Documentation.
“Documentation” means any additional documentation regarding the Services (including any usage guides and policies, as updated from time to time), accessible via PrivCo’s “help” functionalities, by logging in to the applicable Services or as otherwise provided to you by PrivCo.
“Services” are the online products and services made available by PrivCo, including any products and services that you order under an Order Form (excluding the API, as set forth above).
“User” means an individual who is authorized by you to use the Services, for whom you have purchased a subscription, and is provided with a user identification and password. Users may include, for example, your employees, consultants, contractors and agents.
2. PrivCo’s Responsibilities
PrivCo will (a) make the Services and Data available to you pursuant to this Agreement and the applicable Order Forms, (b) provide applicable standard support for the Services to you at no additional charge (unless otherwise specified in an Order Form), (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which PrivCo will use commercially reasonable efforts to give advance electronic notice), and (ii) any unavailability caused by circumstances beyond PrivCo’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider, hosting provider, failure or delay, third-party application, or denial of service attack.
3. Use of the Services and Data
a. Subscriptions. Services and access to Data may be purchased under an Order Form. PrivCo grants you a right to access and use the Services and Data as set forth in this Agreement and the Order Form. Services and Data are subject to usage limits, including, for example, the quantities and limits specified in Order Forms and Documentation. Unless otherwise specified, (i) the Services or Data may not be accessed by more than that number of Users specified in an Order Form, (ii) a User’s password may not be shared with any other individual, and (iii) a User identification may only be reassigned to a new individual replacing one who will no longer use the Services or Data. If you exceed a contractual usage (e.g., by exceeding the number of exports allowed per month) limit, PrivCo may suspend or terminate your access to the Services, in its sole discretion.
b. Reservation of Rights. Subject to the limited rights expressly granted hereunder, PrivCo and its licensors reserve all of its/their right, title and interest in and to the Services and Data, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
c. Your Responsibilities. You will (i) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (ii) use commercially reasonable e orts to prevent unauthorized access to or use of Services and Data, and notify PrivCo promptly of any such unauthorized access or use, and (iii) use Services and Data only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations.
d. Usage Restrictions. Except as expressly permitted under this Agreement, an Order Form, or the Documentation, you will not (i) make any Services or Data available to, or use any Services or Data for the benefit of, anyone other than you or Users, (ii) not publish, share, display, disclose, transfer, sell, resell, license, sublicense, distribute, make available, rent or lease any Data, including derivative works of the Data, (iii) use, sell, resell, license, sublicense, distribute, make available, rent or lease any Services or Data in a service bureau or outsourcing offering, (iv) introduce any code, files, scripts, agents or programs intended to do harm (e.g., viruses, worms, time bombs and Trojan horses) into the Services, (v) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein, (vi) attempt to gain unauthorized access to any Services or Data or its related systems or networks, (vii) permit direct or indirect access to or use of any Services or Data in a way that circumvents a contractual usage limit, or use any Services to access or use any of PrivCo’s intellectual property, (viii) copy any Services or any part, feature, function or user interface thereof or the Data, (ix) frame or mirror any part of any Services or Data, other than framing on your own intranets or otherwise for your own internal business purposes, (x) access any Service or Data in order to build a competitive product or service or to benchmark with a third- party product or service, (xi) alter any part of the Data, except as expressly authorized under this Agreement or otherwise create derivative works of the Data, (xii) remove any legal, copyright, trademark or other proprietary rights notices contained in or on the Data (xii) develop, support or use software, devices, macros, scripts, robots, or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology) to (A) scrape the Data, (B) otherwise copy the Data from the Services, or (C) store or save the Data outside of the Services; (xiii) store or access the Data outside of the Services, or (xiv) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure or organization of the Services or attempt to create a substitute or similar service through use of or access to the Services. Any breach of the terms set forth in this paragraph concerning permitted use shall be a material breach of this Agreement.
e. Suspension. Any use of the Services in breach of this Agreement (including the limits in (d) above), Documentation or Order Forms, by you or Users that in PrivCo’s sole judgment threatens the security, integrity or availability of the Services or violates Sections (d)(xii) or (xiii) above, may result in PrivCo’s immediate suspension of the Services. However, PrivCo will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to such suspension.
f. Removal of Data. If PrivCo is required by a third-party to remove any Data, or if it receives information that Data provided to you may violate applicable law or third-party rights, then PrivCo may notify you and in such event you will promptly remove such Data from your systems. If you do not take required action in accordance with the above, PrivCo may disable the applicable Data and Services until the potential violation is resolved.
g. Citations . You must provide PrivCo with appropriate attribution (e.g., “data provided by PrivCo”) in connection with your use of the Data. If you intend to use any Data (whether substantial portions or discrete pieces of Data) in publicly distributed materials, then you must get PrivCo’s prior written approval prior to any public dissemination.
4. Fees and Payment
a. Fees. If you have an Order Form, then you will pay all fees specified on the Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Data subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
b. The following terms apply to Services that are purchased pursuant to an Order Form: The term of each subscription will be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
c. The following terms apply to Services that are not provided pursuant to an Order Form:
i. Price. PrivCo reserves the right to determine pricing for the Services.
ii. Authorization. You authorize PrivCo to charge all sums for the orders that you make and any level of Services you select as described in this Agreement or published by PrivCo, to the payment method specified in your account. If you pay any fees with a credit card, PrivCo may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
iii. Subscription Service. If you incur monthly automatic payments for the Services you have purchased (“Subscription Service”), then you authorize PrivCo to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or PrivCo terminates it. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fee to your account. PrivCo will bill the periodic subscription fee to the payment method you provide to PrivCo during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by emailing PrivCo at email@example.com with your contact number and start date in the subject line.
d. Invoicing and Payment. You will provide PrivCo with valid and updated payment information. You authorize PrivCo to charge such payment method for all Services listed in the Online or Order Form for the initial subscription term and any renewal subscription term(s). Such charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Online or Order Form. If the Order Form specifies that payment will be by a method other than a credit card, PrivCo will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for notifying PrivCo of any changes to your billing information.
e. Overdue Charges . Late payments may accrue interest at the lesser of 1.5% per month or the maximum amount permissible under applicable law. You will also reimburse PrivCo for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which PrivCo does not waive by the exercise of any rights under this Agreement), PrivCo will be entitled to suspend your access to the Services if you fail to pay any amounts when due hereunder and the failure continues for 7 days following written notice of the failure.
f. Taxes. The fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If PrivCo has the legal obligation to pay or collect Taxes for which you are responsible under this Section, PrivCo will invoice you and you will pay that amount unless you provide PrivCo with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, PrivCo is solely responsible for taxes assessable against PrivCo based on its income, property and employees.
g. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by PrivCo regarding future functionality or features.
5. User Content
a. User Content. Certain parts of the Service may allow you to submit comments and engage in discussions with PrivCo and other users. Any content you submit to the Service, other than account registration information, is “User Content.”
b. You understand and agree that User Content includes information, views, opinions, and recommendations of many individuals and organizations and is designed to help you gather the information you need to help you make your own decisions. You are responsible for your own investment decisions and for properly analyzing and verifying any information you intend to rely upon. PrivCo does not endorse any recommendation or opinion made by any user. PrivCo does not routinely screen, edit, or review User Content. However, PrivCo reserves the right to monitor or remove any User Content from the Services at any time without notice.
c. If you upload, post or submit any User Content on the Service, then you represent to PrivCo that you have all the necessary legal rights to upload, post or submit such User Content and it will not violate any law or the rights of any person. You agree that upon uploading, posting or submitting information on the Services, you grant PrivCo, and its respective affiliates and successors a non- exclusive, transferable, worldwide, fully paid-up, royalty-free, perpetual, irrevocable right and license to use, distribute, publicly perform, display, reproduce, and create derivative works from your User Content in any and all media, in any manner, in whole or part, without any duty to compensate you. You also grant PrivCo the right to authorize the use of User Content, or any portion thereof, by users and other users in accordance with the terms and conditions of this Agreement, including the rights to feature your User Content specifically on the Services and to allow other users or users to request access to your User Content, such as through an RSS Feed.
d. PrivCo may remove any User Content for any reason and without notice to you.
e. Copyright/IP Policy. It is PrivCo’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, PrivCo will promptly terminate without notice the accounts of users that are determined by PrivCo to be “repeat infringers.” A repeat infringer is a user who has been notified by PrivCo of infringing activity violations more than twice and/or who has content removed from the Services more than twice. If you believe that your work has been copied and is accessible on the Services in a way that constitutes intellectual infringement, you may notify PrivCo by providing the following information to our designated agent set forth below:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
ii. a description of the copyrighted work or other intellectual property that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Services;
iv. your address, telephone number, and email address;
v. a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
vi. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
149 East 23rd Street, #1904,
New York, NY 10010
Phone: (212) 645-1686
Note: Only notices of alleged intellectual property infringement should be sent to PrivCo’s Designated Agent. No other communications will be accepted or responded to.
6. Feedback . You grant to PrivCo a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or Users relating to the Services.
a. “Confidential Information” means any non-public information, data, or other materials provided or disclosed by one party to the other in connection with performing each party’s obligations under this Agreement. Without limiting the previous sentence, the Services, Documentation and Data will be deemed PrivCo’s Confidential Information, and may only be used in accordance with this Agreement.
b. Each party acknowledges, understands and agrees that this Agreement and the relationship established hereby create a relationship of confidence and trust between the parties with respect to Confidential Information. Each party, as recipient of Confidential Information will not, during or subsequent to the Term, use the other party’s Confidential Information for any purpose whatsoever other than the performance of its obligations under this Agreement or disclose the other party’s Confidential Information to any third party. It is understood that the discloser’s Confidential Information will remain the sole property of the discloser. The recipient further agree to take all reasonable precautions to prevent any unauthorized disclosure of discloser’s Confidential Information to any third party without the discloser’s prior written approval. If the recipient becomes legally compelled to disclose any of the discloser’s Confidential Information, then the recipient will provide the discloser prompt written notice of such disclosure and will assist the discloser in seeking a protective order or another appropriate remedy at the discloser’s sole cost and expense. If the discloser waives the recipient’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, then the recipient will furnish only that portion of the discloser’s Confidential Information that is legally required to be disclosed, provided that any discloser Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than such legally compelled disclosure. In addition, recipient will be permitted to disclose the discloser’s Confidential Information in confidence to its attorneys in connection with the enforcement of its rights hereunder.
c. Disclosures to Personnel. The confidentiality obligations of each of the parties apply to its affiliated and related entities, officers, managers, employees, contractors and agents, each of whom must comply with and be subject to the terms and conditions of these confidentiality obligations. Furthermore, each party may disclose Confidential Information to any business and legal representatives of such party who have a legitimate need to know such confidential information and who agree to be subject to the terms and conditions of the applicable confidentiality obligations hereunder or who otherwise have a duty of confidentiality to such party.
d. Return of Materials . Upon the termination or expiration of this Agreement or upon the discloser’s earlier request, the recipient will (i) deliver to the discloser all of the discloser’s property or Confidential Information that the recipient may have in its possession or control, or (ii) destroy all of the discloser’s Confidential Information that the recipient may have in its possession or control and provide the discloser with a certificate of destruction.
8. Representations and Warranties; Disclaimers
a. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
b. Warranties. PrivCo warrants that during an applicable subscription term, (i) the Services will perform materially in accordance with the applicable Documentation, and (ii) PrivCo will not materially decrease the overall functionality of the Services. For any breach of a warranty above, your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
c. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. DATA IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. PRIVCO DOES NOT WARRANT THAT THE DATA IS ACCURATE OR COMPLETE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. PRIVCO DOES NOT GIVE TAX OR INVESTMENT ADVICE OR ADVOCATE THE PURCHASE OR SALE OF ANY SECURITY OR INVESTMENT. YOU SHOULD ALWAYS SEEK THE ASSISTANCE OF A PROFESSIONAL FOR TAX AND INVESTMENT ADVICE.
9. Indemnification . You will, at your own expense, indemnify, defend and hold PrivCo harmless against all costs, damages, losses, liabilities, fines, penalties, and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Liabilities”) arising as a result of or in connection with any third party claim or allegation relating to your use of the Services not in accordance with this Agreement or the Documentation. PrivCo will provide you with prompt written notice of any claim for which PrivCo claims a right of indemnification hereunder and will provide reasonable information and assistance, at your sole expense, to defend or settle such claim. You will not enter into any settlement or agree to any disposition that imposes any conditions or obligations on PrivCo without PrivCo’s written consent, such consent to be granted or withheld in PrivCo’s sole discretion. PrivCo may at any time participate in any matter or litigation, including, but not limited to, participation in any indemnifiable claim through counsel of its own selection, provided that the hiring of such counsel will be at PrivCo’s sole expense. Notwithstanding the foregoing, if PrivCo in good faith believes that you are either financially incapable of or unwilling to adequately defend PrivCo against any indemnifiable claim, then PrivCo may assume the defense of any action against PrivCo for which you are obligated to indemnify PrivCo at your expense.
10. Limitation of Liability . IN NO EVENT WILL THE AGGREGATE LIABILITY OF PRIVCO, TOGETHER WITH ALL OF ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ OBLIGATIONS TO PAY FEES TO PRIVCO. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
a. Termination. A PrivCo Enterprise User may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach of a material term of this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, PrivCo may terminate this Agreement for convenience upon 30 days’ prior notice to You.
b. Refund or Payment upon Termination. If this Agreement is terminated by you in accordance with Section 11(a)(i) or if PrivCo terminates this Agreement for convenience in accordance with Section 11(a), then PrivCo will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by PrivCo in accordance with Section 11(a)(i), then you will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to PrivCo for the period prior to the effective date of termination. No Refund will be made for PrivCo Select Subscriptions or Custom Solutions (e.g Data Reports).
c. Surviving Provisions . Sections 3(b), 3(d), 3(g), 4, 5(c), 6, 7, 8(c), 9,
10, 11(b), 11(c), 12, and 13 will survive any termination or expiration of this Agreement.
12. Governing Law and Jurisdiction . This Agreement will be governed by and construed under the laws of New York as applied to agreements among New York residents entered into and to be performed entirely within the State of New York. The parties agree to submit to the venue and jurisdiction of the City and County of New York or the Southern District of New York. Each party hereby waives all defenses of lack of personal jurisdiction and forum non-conveniens.
13. General Provisions
a. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between you and PrivCo regarding your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
b. Injunction. You acknowledge and agree that the Data is extremely valuable and its unauthorized use or disclosure would cause irreparable harm to PrivCo. Accordingly, in the event that PrivCo reasonably believes that You have used or disclosed any Data in violation of the terms of any agreement with PrivCo, PrivCo shall be entitled to injunctive relief, including a temporary restraining order, preliminary injunction, and permanent injunction, without posting of a bond or other security. Without limiting any other remedies hereunder, and in addition to any monetary damages available under applicable law, PrivCo shall be entitled to recover from You any attorneys’ fees or costs incurred in obtaining any type of injunctive relief, in whole or in part, as permitted under this Agreement.
c. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its a liate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets (each, a “Change of Control”). Notwithstanding the foregoing, you may not assign this Agreement, by way of Change of Control or otherwise, to a competitor of PrivCo. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
d. General. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
e. Federal Government End Use Provisions. PrivCo provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: The government hereby agrees that the software qualifies as “commercial” computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as de ned in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with PrivCo to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
f. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii) the day of sending by email.
g. Force Majeure. Neither party will be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any act of God, war, government intervention, riot, earthquake, fire, food, power outage, failure of the Internet or any similar cause beyond such party’s control.
h. No Third-Party Beneficiaries. Except as expressly set forth in this Agreement, this Agreement is entered into for the sole benefit of the parties hereof, and except as specifically provided herein, no other person or entity will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, this Agreement.