These Terms and Conditions form a part of the Agreement between Facta and Client, as such terms are defined in an applicable Service Order. Facta and Client are sometimes referred to in the Agreement collectively as the “Parties” and individually as a “Party.”
In consideration of the mutual promises set forth in the Agreement and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, Facta and Client agree as follows:
1. Definitions. For the purposes of the Agreement:
1.1 “Client Data” means all data stored in Client’s Third Party Software environment, data entered into the Services by Client, and the personal data of Users. Client Data does not include: (a) any Confidential Information of Facta, including any proprietary formatting or algorithms, database schema, or other trade secrets or business knowhow of Facta, or (b) any data compiled by Facta pursuant to Section 6(c) below.
1.2 “Confidential Information” means any disclosed information, in any form or medium and however communicated, that the Recipient should reasonably expect to be confidential or proprietary in nature, including information consisting of or relating to the Discloser’s technology, trade secrets, know-how, business operations, plans, strategies, customers, costs and pricing, and information (including third party information) with respect to which the Discloser has contractual or other confidentiality obligations, in each case whether or not designated as “confidential.” Without limiting the foregoing, the following are Confidential Information of Facta: the terms of the Agreement, the Services and Software (and any code relating thereto, in both source code and object code form), and any documentation related to the Services or Software. Without limiting the foregoing, the following are Confidential Information of Client: Client Data. However, Confidential Information does not include information that (a) was or becomes generally known by the public other than by the Recipient’s (or any of its representatives’) noncompliance with the Agreement or other wrongful act, (b) was rightfully known to the Recipient without restriction on use or disclosure prior to the disclosure by the Discloser in connection with the Agreement, (c) was or is received by the Recipient on a non-confidential basis from a third party that was not, at the time of such disclosure, under any obligation to maintain its confidentiality, or (d) was or is independently developed by the Recipient without reference to or use of any of the Discloser’s Confidential Information.
1.3 “Discloser” means the Party providing Confidential Information to the other Party.
1.4 “Intellectual Property Right(s)” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.5 “Recipient” means the Party receiving Confidential Information from the other Party.
1.6 “Services” means, collectively, the Software Products made available to Client via a web browser and the Internet, access to which is provided by Facta via an applications service provider (ASP) model.
1.7 “Service Order” means the document(s) specifying the Software to be included in the Services licensed by Client pursuant to the Agreement, as well as any other documents of similar import entered into between the Parties from time to time.
1.8 “Software” or “Software Product(s)” means, both individually and collectively, the proprietary computer software programs of Facta, provided to Client as a part of the Services licensed under the Agreement. Software may be generally available or provided to Client as a part of a limited alpha or beta testing phase of development.
1.9 “Term” means the term of the Agreement, as more specifically defined in an applicable Service Order.
1.10 “Third Party Software” means any third party accounting software that is not published or owned by Facta, but with which the Software integrates in order to provide the Services.
1.11 “User(s)” means those individuals to whom Client has granted access to use the Services on Client’s behalf, and for whom access credentials have been created for such access.
2. License and Restrictions
2.1 License. Pursuant to the terms of the Agreement, Facta hereby grants to Client a limited, non-exclusive, non-transferable, non-assignable (except pursuant to Section 13.4 below), revocable license to utilize the Services for Client’s internal business purposes during the Term (as defined in Section 5.1 below).
2.2 Restrictions. Notwithstanding anything in the Agreement to the contrary, Client will not: (a) copy, modify or create derivative works or improvements of the Services or Software; (b) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Software, in whole or in part; (c) bypass or breach any security device or protection used by the Services or Software or access or use the Services or Software other than as authorized by the Agreement through the use of valid access credentials; (d) input, upload, transmit or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Software or Facta’s provision of services to any third party, in whole or in part; (f) access or use the Services or Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law; or (g) access or use the Services or Software for the development or provision of a competing software service or product, either by client or any third party, or any other purpose that is to the detriment or commercial disadvantage of Facta. Client may not provide access to the Services to any third party that Client knows, or by reasonable diligence ought to know, is a direct competitor of Facta. In the event of any unauthorized use of the Services, Facta, in its sole discretion, reserves the right to restrict Client’s (or any of its Users’) access to the Services, provided Facta provides Client a reasonable period of time to cure such unauthorized access or use.
2.3 Agent User Accounts. Client and its Users may use the Services on behalf of any company, organization, or other entity (each a “Client Customer”) for which Client acts as agent to provide professional accounting and consulting services. If entering into the Agreement for the purpose of providing such services (“Client Services”) then Client represents and warrants that (a) it is an authorized representative of each Client Customer; (b) Client has all necessary authority and permission to access and control each Client Customer’s data contained within such Client Customer’s Third Party Software instance that Client connects to the Services in Client’s Facta environment; and (c) it enters into the Agreement on its own behalf in order to provide the Client Services to Client Customers, and not as agent on behalf of such Client Customers. By connecting to a Client Customer’s Third Party Software instance, Client gives Facta permission to access and use any information from that service, as permitted by such service, and to store any access credentials for such service. Should either of Client’s representations and warranties in (a) and (b) above cease to be true for any reason, Client must immediately (i) notify Facta of that fact and (ii) disconnect such Client Customer’s Third Party Software instance from the Services. Facta may, at the request of the Client Customer (or former Client Customer as the case may be), and without the permission or approval of Client, transfer all Client Customer-specific data into a new Facta account for the benefit of such Client Customer (or former Client Customer), pursuant to a direct agreement between Facta and such Client Customer (or former Client Customer). For purposes of the foregoing sentence only, such Client Customer-specific data will not be considered Client Data or Client’s Confidential Information under the Agreement, and Client will not assert any rights to such data.
2.4 Responsibility for Users. Client is solely responsible for the activity that occurs on Client’s account. Client is responsible for creating and maintaining access credentials for its Users, and ensuring that those access credentials are protected to prevent unauthorized use of the Services or unauthorized access to Client Data. Users are encouraged to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols). Client must notify Facta immediately of any breach of security or unauthorized use of the Services. Facta will not be liable for any losses caused by the unauthorized use of Client’s User accounts.
2.5 Services and Service Order. The licensed Services are specified on and governed by one or more Service Orders between the Parties. All such Service Orders will reference and incorporate these Terms and Conditions.
3. Support and Maintenance. During the Term, and provided that Client has paid all undisputed Fees due and owing to Facta and is otherwise in material compliance with the terms of the Agreement, Facta will provide Client with telephone, email, and website-based technical support services to assist Client in utilizing the Services licensed pursuant to the applicable Service Order(s). Facta will make reasonable, good faith efforts to respond to technical support requests and to correct errors. Client agrees to cooperate with Facta in providing information as Facta may reasonably request, so that Facta can verify and reproduce reported errors. Online information, instruction manuals, and other materials related to the Services are included with the Services and are available at www.facta.io.
4. Fees. During the Term, Client will pay Facta those certain undisputed fees and charges specified on the Service Order(s) (the “Fees”). Client is responsible for all applicable taxes on the Fees paid by Client, including, without limitation, any and all sales, use, and value-added taxes. Client will pay all Fees in U.S. Dollars by the date specified on an invoice therefor, or, if no date is specified, within thirty (30) days of the invoice date. All Fees payable to Facta under the Agreement will be invoiced in advance on the first day of the month for which Services are provided and will be paid by Client in full, without any setoff, deduction, or withholding for any reason. All Fees (or portions thereof) remaining unpaid after the applicable due date will accrue interest, from the applicable due date until paid, at a rate equal to the lesser of 1.5% per month or the highest contract interest rate allowed by law. Notwithstanding anything to the contrary in the Agreement, and without prejudice to any other right or remedy it may have, Facta may, without notice, set off or recoup any liability it owes to Client against any liability for which Client is liable to Facta.
4.1 CPI Increase. Upon or after each anniversary of the Effective Date, but no more than once per year, Facta reserves the right to increase the Fees by the yearly percentage increase in the Consumer Price Index for All Urban Consumers, U. S. City Average (for “all items less food and energy”) as issued by the Bureau of Labor Statistics of the U.S. Department of Labor ("CPI"), as reported for the month prior to such anniversary date. Facta will notify Client at least 30 days in advance of any such increase in Fees.
5. Term and Termination
5.1 Term. Unless earlier terminated pursuant to the terms of this Section 5, the Agreement will commence on the Effective Date and remain in effect during the Term, as defined in an applicable Service Order, unless and until either party gives the other party thirty (30) days’ prior written notice of non-renewal.
5.2 Termination for Cause. Either Party may terminate the Agreement for cause if the other Party: (a) commits a material breach of the Agreement which such Party fails to cure within thirty (30) days after receipt of written notice outlining such material breach in reasonable detail; or (b) becomes insolvent, acknowledges insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy.
5.3 Effect of Termination. Following any termination of the Agreement, (a) Facta will discontinue providing the Services; and (b) Client will cease using the Services. In the event of termination by Facta pursuant to Section 5.2 above, Client will immediately pay all Fees due to Facta through the end of the then-current Term. In the event of termination by Client pursuant to Section 5.2 above, Client will pay all Fees accrued up to the date of the Facta default described in the notice provided by Client, and Facta will refund to Client any pro-rated unearned Fees prepaid by Client to Facta.
6. Client Data; License Rights. Facta agrees that, as between the Parties, Client owns all right, title and interest in and to all Client Data. Client is solely responsible for the accuracy, quality, integrity, legality, reliability, classification, and Intellectual Property Rights to use the Client Data. Notwithstanding the foregoing, Client hereby grants Facta the non-exclusive right and license to: (a) copy, use, modify, distribute, display and disclose Client Data solely to the extent necessary to provide the Services to Client pursuant to the terms and conditions of the Agreement; (b) copy, modify and use Client Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes; and (c) copy, use, modify, distribute, display and disclose Client Data to third parties on an aggregated and anonymized basis, solely to the extent that: (i) the aggregate data does not include information that identifies or would reasonably be expected to identify Client as the source of such data; (ii) any dataset into which Client Data is aggregated includes similar data from Facta’s other customers receiving similar services; and (iii) the aggregated data does not include any personally-identifying information. The license rights granted in this Section 6 are perpetual and paid-up. To the extent Client Data is aggregated and anonymized in accordance with clause (c) of this Section 6, such Client Data will no longer be deemed Client Data and will not constitute Client’s Confidential Information.
7. Ownership of Facta’s Intellectual Property. Facta and its licensors exclusively own all right, title, and interest in and to (a) the Software and Services; (b) any Services-related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by Client to Facta during the Term; and (c) any aggregated and anonymized data created in accordance with clause (c) of Section 7 above. The Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software, Services, or Intellectual Property Rights of Facta. Facta’s logo and the product names associated with the Software and Services are trademarks of Facta (or its licensors, where applicable) and no right or license is granted to Client to use them.
8. Confidential Information
8.1 Use and Disclosure. Recipient will: (a) not access or use Discloser’s Confidential Information other than as necessary to exercise its rights or perform its obligations under the Agreement; (b) not disclose or permit access to Discloser’s Confidential Information other than to its representatives who (i) need to know such Confidential Information for purposes of performing Recipient’s obligations under the Agreement; and (ii) have been informed of the confidential nature of the Confidential Information and Recipient’s obligations under the Agreement; (c) safeguard Discloser’s Confidential Information from unauthorized use, access or disclosure with at least the same degree of care it uses to protect its similarly sensitive information and in no event less than reasonable care; and (d) be liable for any of its representatives’ non-compliance with the terms of this Section 8.1. If Recipient is compelled by law to disclose Discloser’s Confidential Information, then – to the extent permitted by applicable law – Recipient will: (A) promptly, and prior to such disclosure, notify Discloser in writing of such requirement so that Discloser can seek a protective order or other remedy, or waive its rights under this Section 8.1; and (B) provide reasonable assistance to Discloser, at Discloser’s sole expense, in opposing such disclosure or seeking a protective order or other remedy. These confidentiality obligations will survive termination of the Agreement until such time as such information no longer meets the definition of Confidential Information.
8.2 Injunctive Relief. Each Party agrees that money damages may not be a sufficient remedy for any breach of the obligations of Section 8.1 and that the Discloser will be entitled to seek specific injunctive relief as a remedy for any such breach. Such remedy will not be deemed to be the exclusive remedy for the breach of obligations herein but will be in addition to all other available legal or monetary remedies.
9. Representations and Warranties. Client warrants to Facta that:
9.1 it has the power and authority to enter into the Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which Client is bound;
9.2 it will comply with all applicable laws, rules, and regulations related to the provision and use of the Services;
9.3 it will not violate, or knowingly allow others to violate, the provisions of Section 2.2 above; and
9.4 it owns, or is otherwise authorized by the owner of, all Intellectual Property Rights in and to the Client Data, sufficient to grant access to the same to Facta for the purpose of performing its obligations under the Agreement.
If made aware of a violation of the restrictions of this Section 9, Facta reserves the right to suspend User accounts or remove any restricted content, as it deems appropriate, immediately upon written notice to Client. Where an opportunity to cure such violation is reasonable and appropriate, as determined in Facta’s reasonable discretion, Facta will provide Client such opportunity.
9.5 Limited Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, FACTA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, ACCURACY, OR COMPLETENESS OF THE SOFTWARE OR SERVICES. FACTA DOES NOT REPRESENT OR WARRANT THAT: (A) CLIENT’S USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM(S), OR DATA; (B) THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; OR (C) ALL NON-CONFORMITIES CAN BE OR WILL BE CORRECTED. ALL SERVICES PROVIDED BY FACTA HEREUNDER ARE STRICTLY ON AN “AS IS” BASIS. FACTA DOES NOT MAKE ANY WARRANTIES, REPRESENTATIONS, OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY CONTENT, EXPRESS OR IMPLIED. EXCEPT AS SET FORTH IN THIS SECTION 9, EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, CONDITIONS AND REPRESENTATIONS RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND MERCHANTABILITY.
9.6 Beta Versions. If Client licenses any Software (or feature of a Software Product), now or in the future, designated as an “alpha” or “beta” test version, Client acknowledges and agrees that such Software or feature may contain bugs, defects, and errors, and is subject to change or discontinuation without notice, and without liability to Facta. Client further acknowledges and agrees that such Software or features are provided at a discount to Client in exchange for Client’s evaluation of the Software or features. Facta does not warrant or make any representations concerning the accuracy, likely results, or reliability of such Software or features.
10. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FACTA BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE, SERVICES, OR THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERRORS, OR OMISSIONS, EVEN IF FACTA HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF FACTA WILL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO FACTA IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THESE TERMS AND CONDITIONS SET FORTH THE ENTIRE LIABILITY OF FACTA, AS WELL AS CLIENT’S EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND THEIR USE.
11. Indemnification. Client will indemnify, defend, and hold harmless Facta and Facta’s parent organizations, subsidiaries, affiliates, officers, directors, and employees (each a “Facta Indemnitee”) from and against any and all losses incurred by such Facta Indemnitee (including attorneys’ fees and costs), in connection with any claim, suit, action or proceeding by a third party to the extent such losses arise out of or relate to: (a) the processing of Client Data by or on behalf of Facta in accordance with the Agreement; (b) any materials or information provided by or on behalf of Client, including specifications or directions, to the extent prepared without any contribution by Facta; (c) Client's or any User’s breach of any representation, warranty, covenant or obligation under the Agreement; or (d) the gross negligence or more culpable act or omission of Client, any User, or any third party on behalf of Customer, in connection with the Agreement.
11.1 Indemnification Procedure. Client will be entitled to take control of the defense, investigation or settlement of any claim for which it owes indemnification to Facta, and Facta agrees to reasonably cooperate, at Client’s cost, in the ensuing investigations, defense or settlement. Client may not settle any claim, action, suit or proceeding related to the Agreement without Facta’s consent, unless the settlement also includes an unconditional release of Facta from liability.
12. Mandatory Arbitration; Class Action/Jury Trial Waiver. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that Client may assert claims in small claims court if its claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Delaware law to all other matters. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction, subject to Section 13.3 below. THE PARTIES EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THE AGREEMENT AND AGREEING TO ARBITRATION, CLIENT AGREES THAT EACH PARTY IS WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, CLIENT AGREES TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. CLIENT AGREES THAT IT HAS EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
12.1 Arbitration Procedure. To begin an arbitration proceeding, Client must send a letter to Facta, in accordance with Section 13.11 below, requesting arbitration and describing its claim. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator, under the AAA’s Commercial Arbitration Rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof.
13.1 Electronic Signatures. Client hereby acknowledges and agrees that the electronic signature of any person authorized by Client to bind Client to the terms of the Agreement, and provided in connection with any Service Order or other document requiring signature, will have the same legal effect as a hand written signature by such person.
13.2 Changes to Terms and Conditions; Software. Facta reserves the right to modify these Terms and Conditions at any time, and such modifications will be effective when posted on its website, or when Facta notifies Client by other reasonable means. Client’s continued use of the Services indicates its agreement to the changes. Facta may also change or discontinue the Services, or any Software Product, in whole or in part, at any time.
13.3 Choice of Law and Jurisdiction. The Agreement will be governed by the laws of the State of Delaware, without reference to rules governing choice of law. If any dispute arises between the Parties concerning the Agreement, and only if such dispute is not subject to arbitration pursuant to Section 12 above, then forum and venue will be laid exclusively in the state and federal courts located nearest to Salt Lake City, Utah, and such courts will have exclusive jurisdiction over such dispute. The Parties hereby consent to the personal jurisdiction of such courts and expressly waive all defenses of lack of personal jurisdiction and forum non-conveniens, and agree that process may be served on either Party in a manner authorized by applicable law or court rule. In the event of any such dispute, the prevailing party will be entitled to recover from the non-prevailing party all reasonable attorneys’ fees and costs incurred by the prevailing party in connection with such dispute, regardless of whether such dispute results in the filing of a lawsuit.
13.4 Assignment. Neither Party may assign the Agreement, by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed; provided, however, that Facta may assign the Agreement without consent to its successor in a merger, acquisition or other change of control, including without limitation the sale of all or substantially all of its assets, stock or business to which the Agreement relates.
13.5 Entire Agreement; Amendment; Counterparts. The Agreement constitutes the entire agreement between the Parties concerning the subject matter of the Agreement and supersedes all written or oral prior agreements or understandings with respect thereto, including, without limitation, any proposals, price quotes, or non-disclosure agreements. In the event of any conflicts between these Terms and Conditions and the terms of any Exhibit(s), Service Order(s), or other document binding and applicable to the Parties, these Terms and Conditions will control unless expressly stated otherwise. These Terms and Conditions may not be amended except in a writing signed by authorized representatives of both Parties. Service Orders and other documents requiring signatures may be executed by the Parties in counterparts, each of which will be considered an original, and all of which together will constitute one and the same instrument.
13.6 Severability. In case any one or more of the provisions of the Agreement should be held invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision will be modified, if possible, to the minimum extent necessary to make it valid and enforceable; or if it cannot be so modified, then severed, and the remaining provisions contained herein will not in any way be affected or impaired.
13.7 Waiver. Neither Party’s failure to enforce strict performance of any provision of the Agreement will constitute a waiver of a right to subsequently enforce such provision. No modification, extension or waiver of the Agreement will be valid unless made in writing and signed by an authorized representative of the Party to be charged. No written waiver will constitute, or be construed as, a waiver of any other obligation or condition of the Agreement.
13.8 Force Majeure. Neither Party will be liable for any delays or failures of performance hereunder, except for payments, to the extent that performance of such Party’s obligations or attempts to cure any breach under the Agreement are delayed or prevented as a result of: an act of God, flood, fire, terrorism, strikes, lockouts, riots or other civil unrest, acts of war, or any other similar event or circumstance beyond the Party’s reasonable control; provided that the other Party may terminate the Agreement upon thirty (30) days’ written notice if the circumstances causing non-performance can reasonably be expected to continue more than one (1) calendar month.
13.9 No Agency. The Agreement will not be construed to create an agency, franchise, representative, joint venture, employment relationship, or partnership between the Parties. The Parties are and remain independent contractors. Neither Party has the authority to bind the other or to incur any liability or otherwise act on behalf of the other.
13.10 Survival. Each Party’s obligations under Sections 6, 7, 8, 9, 10, 11, 12, 13, and any other provisions that by their nature should reasonably be interpreted to survive, will survive the termination of the Agreement.
13.1 Notices. Notices required or permitted herein or by law must be in a writing delivered in person or sent by (a) registered mail return receipt requested, (b) overnight air courier, or (c) electronic mail. If to Facta pursuant to (a) or (b), notice must be sent to its registered agent in California; if pursuant to (c), to email@example.com. If to Client, notice must be sent to Client’s primary contact identified in the Client Information section on the first page of the Agreement (or such other primary contact as may be updated by appropriate notice from time to time). Notices of type (a) and (b) will be considered to have been given at the time of actual receipt, and of type (c) one day following the transmission and non-return of an electronic mail message.
13.2 Export Controls. The Services may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Client acknowledges and agrees that the Software and the Services will not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported, outside of the United States. Client further acknowledges and agrees that the Software and the Services will not be used by any national or resident of any embargoed country, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of embargoed countries and Designated Nationals are subject to change without notice. By using the Service, Client represents that Client is not located in, under the control of, or a national or resident of an embargoed country or Designated National. Client agrees to comply with all U.S. export laws.
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