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MASTER SUBSCRIPTION AGREEMENT

This Enterprise Software Subscription Agreement (“Agreement”) made as of the date of the last party has signed the Order Form or Quote (“Effective Date”) by and between Wave Nine Inc. located at 490 43rd Street Suite 90 Oakland, CA 94609, United States hereinafter referred to as “Wave Nine”, and You (“Client”), each a party and collectively the parties.

In consideration of the mutual promises and covenants and agreement herein contained, the parties agree as follows:

1. DEFINITIONS
The following words will have the given meanings in this Agreement.
 
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
 
“Agreement” means this Enterprise Software Master Subscription Agreement.
 
“Consultant Content” means any training materials for the Purchased Services provided by Wave Nine.
 
“Content” means information created or obtained by Wave Nine from Wave Nine’s content licensors or publicly available sources and provided to the Client pursuant to an Order Form or Quote, as more fully described in the Documentation.
 
“Client Data” means electronic data and information submitted by or for the Client to the Purchased Service or collected and processed by or for the Client using the Purchased Services.
 
“Documentation” means Wave Nine’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via login to the applicable Service.
 
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
 
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between the Client and Wave Nine, including any addenda and supplements thereto. By entering into an Order Form or Quote hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
 
“Professional Services” are any consulting services related the Purchased Services.
 
“Purchased Services” means Services that the Client or the Client’s Affiliate purchase under an Order Form or Quote, as distinguished from those provided pursuant to a free trial.
 
“Services” means the products and services that are ordered by the Client under a free trial or an Order Form or Quote  and made available online by Wave Nine, including associated offline components, as described in the Documentation. “Services” exclude Content.
 
“User” means an individual who is authorized by the Client to use a Service, for whom the Client has ordered the Service. Users may include, for example, the Client’s employees, consultants, contractors and agents, and third parties with which the client transacts business.
 
“WorkBoard” means WorkBoard, Inc. and its main software product, WorkBoard Enterprise.
 
2. WAVE NINE RESPONSIBILITIES
2.1. Provision of Purchased Services. Wave Nine shall make the Purchased Services available to the Client as set forth in this Section 2.1, subject to the terms and conditions of this Agreement. Wave Nine will (a) make the Services and Content available to the Client pursuant to this Agreement and the applicable Order Forms or Quotes, and (b) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Wave Nine shall give at least 8 hours electronic notice and which Wave Nine shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00a.m. Monday (Pacific time), and (ii) any unavailability caused by circumstances beyond Wave Nine’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 (other than one involving Wave Nine’s employees), Internet service provider failure or delay, or denial of service attack.
2.2 Protection of Client Data. Wave Nine will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Client’s Data by Wave Nine’s personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as the Client expressly permits in writing.
2.3 Wave Nine Personnel. Wave Nine is responsible for the performance of their own personnel (including their employees and contractors) and their compliance with such party’s obligations under this Agreement, except as otherwise specified herein.
3. USE OF SERVICES AND CONTENT
 
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Quote, (a) Purchased Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. The subscription commences (“Subscription Start Date”) on the “Effective Date” of this agreement.
 
3.2 Usage Limits. Purchased Services and Content are subject to usage limits, including, for example, to the quantities specified in Order Forms or Quotes. Unless otherwise specified, (a) a quantity in an Order Form or Quote refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. The Client may provision Users in excess of the quantity specified on the Order Form or Quote and Wave Nine will generate a dynamic Order Form or Quote with the incrementally provisioned Users at the end of each quarter; such users will be added to the subscription in accordance with Section 4 (Fees and Payment for Purchased Services). The Client agrees to be bound by this dynamic Order Form  or Quote under the terms of this Agreement and pay any invoice for such added Users in accordance with Section 4.2 (Invoicing and Payment).
 
3.3 Client Responsibilities. The Client will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the Client’s Data and the means by which the Client acquired the Client’s Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Wave Nine promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service with which the Client uses Services or Content.
 
3.4 Usage Restrictions. The Client will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than the Client or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or Quote or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on the Client’s own intranets or otherwise for the Client’s own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
 
3.5. Reference
 
The Client authorizes Wave Nine to use the Client’s name and logo and a brief summary of services rendered as a reference free of charge in electronic or printed form for internal and external marketing activities, e.g. in presentations, offerings, brochures, customer reports and on the internet. Client would also provide a testimonial summarizing their experience with Wave Nine at the conclusion of the assignment.
 
4. FEES AND PAYMENT FOR PURCHASED SERVICES
 
4.1. Fees. The Client will pay all undisputed fees specified in Order Forms or Quotes. Except as otherwise specified herein or in an Order Form or Quote, (i) fees are based on Services and Content 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.
 
4.2. Invoicing and Payment. The Client will provide Wave Nine with a valid purchase order or alternative document reasonably acceptable to Wave Nine. Wave Nine will invoice the Client annually in advance in accordance with the relevant Order Form or Quote. Invoiced charges are due net 30 calendar days from the date of receipt of an electronic invoice. The Client is responsible for providing complete and accurate billing and contact information to Wave Nine and notifying Wave Nine of any changes to such information.
 
4.3. Overdue Charges. If any invoiced amount is not received by Wave Nine by the due date, then without limiting Wave Nine’s rights or remedies, (a) those charges will accrue late interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (b) Wave Nine will condition future subscription renewals and Order Forms or Quotes on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
 
4.4. Suspension of Service and Acceleration. If any amount owing by the Client under this or any other agreement for Wave Nine’ services is 15 or more days overdue, Wave Nine may, without limiting Wave Nine’s other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Wave Nine’s services to the Client until such amounts are paid in full. Wave Nine will give the Client at least 10 days’ prior notice that the Client account is overdue, in accordance with Section 11.1 (Manner of Giving Notice), before suspending services to the Client.
 
4.5. Payment Disputes. Wave Nine will not exercise their rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if the Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
 
4.6. Taxes. Wave Nine’s 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”). The Client is responsible for paying all Taxes associated with the Client’s purchases hereunder.
 
4.7. Future Functionality. The Client agrees that the Client’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Wave Nine regarding future functionality or features.
 
5. PROPRIETARY RIGHTS AND LICENSES
 
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Wave Nine and their licensors reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to the Client hereunder other than as expressly set forth herein.
 
5.2. License by Wave Nine to Use Content. Wave Nine grants the Client a worldwide, limited-term license, under Wave Nine’s applicable intellectual property rights and licenses, to use Content acquired by the Client pursuant to Order Forms or Quotes, subject to those Order Forms or Quotes, this Agreement, and the Documentation.
 
5.3. License by the Client to Host the Client Data and Applications. The Client grants Wave Nine and its Affiliates a worldwide, limited- term license to host, copy, transmit and display the Client’s Data as necessary for Wave Nine to provide the Services in accordance with this Agreement and to monitor and improve the Services. The Client also grants Wave Nine a perpetual license to use aggregated, non-personally identifiable statistics in part compiled from the processing of the Client Data by Wave Nine as necessary to monitor and improve the Services. Subject to the limited licenses granted herein, Wave Nine acquires no right, title or interest from the Client or the Client’s licensors under this Agreement in or to the Client Data. Client Data that is submitted to or processed by Wave Nine under this Agreement is subject to the WorkBoard privacy policy as set forth at https://www.workboard.com/license/privacy-policy.php.
 
5.4. License by Client to Use Feedback. The Client grants Wave Nine and their respective Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other recommendations, or feedback provided by the Client or Users relating to the operation of the Services (“Feedback’); provided, however, that any Feedback relating solely to the WorkBoard platform (“WorkBoard Feedback”) shall be the exclusive property of Wave Nine.
 
6. CONFIDENTIALITY
 
6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Client’s Confidential Information includes the Client’s Data; Wave Nine’s Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms  or Quotes (including pricing), as well as business and marketing plans, technology and technical information,  pricing  and  profit  information,  proprietary  and/or  confidential  intellectual property, intellectual  property  of third parties  licensed  to the Disclosing  Party in connection  with this Agreement, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
 
6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form or Quote to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent.
 
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. The parties will not publicize the terms of this Agreement, or the relationship, in any advertising, marketing or promotional materials without prior written consent of the other party except as may be required by law, provided the party publicizing gives the other party reasonable prior notice to allow the other party a reasonable opportunity to obtain a protective order.
 
6.4 Equitable Relief. Receiving Party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the Disclosing Party, entitling the other party to seek injunctive relief in addition to all legal remedies.
 
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
 
7.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
 
7.2 Wave Nine’s Warranties. Wave Nine warrants that (a) this Agreement, the Order Forms or Quotes and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, (b) Wave Nine will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) Wave Nine will not materially decrease the functionality of the Purchased Services during a subscription term and (e) the Purchased Services and Content will not introduce Malicious Code into Client’s systems. For any breach of an above warranty, the Client’s exclusive remedies are those described in Sections 10.3 (Termination) and 10.4 (Refund or Payment upon Termination).
 
7.3. 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. CONTENT AND SERVICES ARE PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
 
8. MUTUAL INDEMNIFICATION
 
8.1. Indemnification by Wave Nine. Wave Nine will defend the Client against any claim, demand, suit or proceeding made or brought against the Client by a third party alleging that the use of a Purchased Service provided by Wave Nine in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against the Client”), and will indemnify and hold the Client harmless from any damages, attorney fees and costs finally awarded against the Client as a result of, or for amounts payable under a court-approved settlement of, a Claim Against the Client, provided the Client (a) promptly gives Wave Nine written notice of the Claim Against the Client such that Wave Nine’s interests are not materially prejudiced, (b) gives Wave Nine sole control of the defense and settlement of the Claim Against the Client (except that Wave Nine may not settle any Claim Against the Client unless it unconditionally releases the Client of all liability), and (c) gives Wave Nine all reasonable assistance, at Wave Nine’s expense. The total settlement amount will not exceed the liability limit specified in Section 9.1.
 
If Wave Nine receives information about an infringement or misappropriation claim related to a Service, Wave Nine may in Wave Nine’s discretion and at no cost to the Client (i) modify the Service so that it no longer infringes or misappropriates, without breaching Wave Nine’s warranties under Section 7.2 (Wave Nine’s Warranties), (ii) obtain a license for the Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate the Client’s subscriptions for that Service upon 30 days’ written notice and refund the Client any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against the Client arises from the Client’s breach of this Agreement.
 
8.2. Indemnification by the Client. The Client will defend Wave Nine against any claim, demand, suit or proceeding made or brought against Wave Nine by a third party alleging that the Client’s Data, or the Client’s use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against the Client or Wave Nine”), and will indemnify and hold Wave Nine harmless from any damages, attorney fees and costs finally awarded against Wave Nine as a result of, or for any amounts payable under a court-approved settlement of, a Claim Against Wave Nine, provided the indemnified party (a) promptly give the Client written notice of the Claim Against Wave Nine such that the Client’s interests are not materially prejudiced, (b) give the Client sole control of the defense and settlement of the Claim Against Wave Nine (except that the Client may not settle any Claim Against Wave Nine unless it unconditionally releases the indemnified party of all liability), and (c) give the Client all reasonable assistance, at the Client’s expense.
 
8.3. Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
 
9. LIMITATION OF LIABILITY
 
9.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY THE CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY THE CLIENT HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT THE CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES). NOTWITHSTANDING THE FOREGOING, NEITHER PARTY’S LIABILITY WILL EXCEED $500,000 USD.
 
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
 
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date the Client first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
The Professional Services and Consulting Services shall be available to be delivered to the client within 6 months after the initial Start Date. Wave Nine and the Client agree to extend the 6-month delivery timeframe by 3 months if any professional services and consulting services cannot be delivered by Wave Nine due to Wave Nine’s unavailability. Extending the timeframe has no effect on the number of services available. If any professional services and consulting services could not be delivered due to the Client’s unavailability, Wave Nine and the Client agree to consider these services as delivered and accepted.
10.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form or Quote. Except as otherwise specified in an Order Form or Quote, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter).
10.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains unresolved 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.
10.4. Refund or Payment upon Termination. The Client may terminate this Agreement or any Order Form or Quote for no reason or any reason upon thirty (30) days prior written notice to Wave Nine. The Client acknowledge that in the event of termination, the Client will not receive a refund of any prepaid Fees and will be obligated to pay all Fees due under the term of the Order Form(s) or Quote(s) being terminated.
10.5 Client Data Portability and Deletion. Upon request by the Client within 15 days after the effective date of termination or expiration of this Agreement, Wave Nine will make the Client’s Data available to the Client for export or download as provided in the Documentation. After that 15-day period, Wave Nine will have no obligation to maintain or provide the Client Data, and may thereafter delete or destroy all copies of the Client Data in Wave Nine’s systems or otherwise in Wave Nine’s possession or control as provided in the Documentation, unless legally prohibited.
10.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchased Services”, “Proprietary Rights and Licenses”, “Confidentiality”, “Disclaimers”, “Mutual Indemnification”, “Limitation of Liability”, “Refund or Payment upon Termination”, “Client Data Portability and Deletion”, “Notices, Governing Law and Jurisdiction”, and “General Provisions” will survive any termination or expiration if this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the seventh business day after mailing with express mail (or equivalent), or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Client shall be addressed to the relevant billing contact designated by the Client. All other notices to the Client shall be addressed to the relevant Services system administrator designated by the Client.
11.2 General. Any notice to Wave Nine is required to be given hereunder shall be given at the address set forth in this Agreement:
Philipp Schett, CEO
Wave Nine Inc.
490 43rd Street, Suite 90
Oakland, CA 94609
United States
Philipp@WaveNine.com
+1 415 316 3389
11.3. Agreement to Governing Law and Jurisdiction.  The parties shall use their best efforts to settle amicably and in good faith all disputes arising out of or in connection with this Agreement or the interpretation thereof directly between the two parties. To this purpose, each party shall appoint a principal for such negotiations within twenty (20) calendar days after occurrence of the dispute or after a respective request by one of the Parties. Principal shall mean a board member of the respective Party or any person of equal position.
If the parties fail to reach an amicable agreement, all disputes arising out of or in connection with this Agreement shall be finally and conclusively settled by the American Arbitration Association in accordance with the rules and procedures in force at the date of these proceedings and excluding ordinary proceedings. Such conclusive decision shall be rendered through one arbitrator who shall be appointed in accordance with the provisions of those rules of arbitration. The arbitrator shall also be entitled to decide on the validity of this arbitration’s clause.
The place of arbitration proceedings shall be San Francisco, CA, USA.
The arbitrator shall apply the substantive governing law below.
The governing law is California and controlling United States Federal Law without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
12. GENERAL PROVISIONS
 
12.1. Export Compliance. The Services, Content, other technology Wave Nine makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. The Client shall not permit Users to access or use any Service or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
 
12.2. Anti-Corruption. The Client has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Wave Nine’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If the Client learns of any violation of the above restriction, the Client will use reasonable efforts to promptly notify Wave Nine.
 
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between the Client and Wave Nine regarding the Client’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 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 the Client’s purchase order or in any other of the Client’s order documentation (excluding Order Forms or Quotes) 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 or Quote, (2) this Agreement, and (3) the Documentation.
 
12.4. 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 (including all Order Forms or Quotes), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Wave Nine will refund to the Client any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
 
12.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
 
12.6. Severability. 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.
 
12.7. Force Majeure. Neither party will be in default or liable for any delay or failure to comply with this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.
 
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