Chordio

CHORDIO, INC.

TERMS OF SERVICE

Last Updated: July 24, 2022

The following terms and conditions (the "Terms") govern the access to and use of the proprietary software-as-a-service platform for project management and collaboration (the "Service") provided by Chordio, Inc. ("Chordio") for the entity identified in connection with the creation of the Account (as defined below) and signing up for the Service or agreeing to these Terms (the "Customer"). By clicking a box or a button indicating your acceptance, creating an Account (as defined below) for the Service and/or subscribing to the Service via an order screen on Chordio's website that sets out the details of the Subscription (as defined below) and references these Terms (each an "Order" and all Orders submitted by or on behalf of Customer together with these Terms, the "Agreement"), Customer and the individual submitting the Order or accepting the Terms on the Customer's behalf represent that: (1) Customer agrees to be bound by this Agreement; (2) such individual has the authority to enter into this Agreement on behalf of Customer, and to bind Customer to this Agreement. If Customer does not agree to be bound by this Agreement, Customer may not access the Service.

PLEASE BE AWARE THAT:

SECTION 10.13 (ARBITRATION) OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT CUSTOMER AND CHORDIO HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE (AS DEFINED BELOW) OF THIS AGREEMENT; IN PARTICULAR, IT REQUIRES, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN THE PARTIES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION;
Customer's purchase or access to certain features and functionality of the Service on a time-limited basis pursuant to an Order (a "Subscription") is subject to automatic renewals and recurring payments in accordance with Section 3.2.; and
Any capitalized terms not otherwise defined within these Terms will have the meaning prescribed to them in Section 11.

SERVICES.

[Service]. Subject to Customer's ongoing compliance with the terms of the Agreement, Chordio hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, right during the Subscription Term (as defined below) to access and use, and allow Authorized Users to access and use, the Service and Dashboard solely for Customer's internal business purposes.
[Professional Services]. Subject to Customer's timely payment of all applicable Fees, Chordio will use commercially reasonable efforts to provide to Customer the Professional Services, if any, set forth in the Order. Chordio will own and retain all right, title, and interest, including all intellectual property and proprietary rights, in and to any work product or deliverables created in connection with the Professional Services. Nothing in the Agreement or any attachment hereto shall be understood to prevent Chordio from developing similar work product or deliverables for other customers.
[Restrictions]. Customer shall not, directly or indirectly, and shall not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Chordio Platform or results provided in connection with Professional Services (except to the extent expressly made available to Customer by Chordio or permitted by applicable law notwithstanding this restriction); (b) write or develop any program based upon the Chordio Platform or any portion of any of the foregoing, or otherwise use the Chordio Platform in any manner for the purpose of developing, distributing or making available products or services that compete with the Chordio Platform; (c) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Chordio Platform or any rights to any of the foregoing; (d) permit the Chordio Platform to be accessed or used by any persons other than Authorized Users accessing or using the Chordio Platform in accordance with the Agreement; (e) alter or remove any trademarks or proprietary notices contained in or on the Chordio Platform; (f) circumvent or otherwise interfere with any authentication or security measures of the Chordio Platform or otherwise interfere with or disrupt the integrity or performance of the foregoing; or (g) otherwise use the Chordio Platform except as expressly permitted hereunder. Customer represents and warrants that it or, as applicable, Authorized Users have all rights, authorizations, and consents to provide Customer Data to Chordio and Customer has all rights, authorizations, and consents to grant Chordio the rights and permissions to use and process the Customer Data as contemplated by this Agreement. Customer represents and warrants that it and all Authorized Users will, at all times during the Subscription Term, comply with all applicable laws in connection with its use of the Chordio Platform or Customer Data. Customer acknowledges that Chordio may, but is under no obligation to monitor Customer's use of the Service. Chordio may suspend Customer's, or an Authorized User's access to the Service for any period during which Customer or an Authorized User is, or Chordio has a reasonable basis for alleging Customer or an Authorized User is, in noncompliance with the foregoing.
[Service Levels and Support]. Chordio will use commercially reasonable efforts to: (a) make the Service available to Customer at least 99% of the time, excluding scheduled maintenance, measured on a collective, rolling 6-month basis; (b) prepare and implement a disaster recovery plan intended to restore service within 24 hours after any interruption of the Service; and (c) implement measures designed to secure the Service against unauthorized access to or alteration of Customer Data submitted to or stored on the Service; provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Service and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of all Customer Data submitted to the Service.
[Beta Services; Free Trials.] From time to time, Chordio may, but is not obligated to, offer certain features of the Service on a beta or early access or similar basis ("Beta Services") to Customer. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) use of any Services shall be at Customer's sole discretion; (b) Beta Services may not be supported and may be changed at any time by Chordio, including in a manner that reduces functionality of the Beta Services; (c) Beta Services may not be available or reliable; (d) Beta Services may not be subject to the same security or audits as the Service; and (e) Chordio provides Beta Services "as-is" and will have no liability arising out of or in connection with Beta Services. In addition, from time to time, Chordio may, but is not obligated to, offer access to the Service or certain features thereof free of charge for a limited period of time ("Free Trials"). To the extent any Free Trial is offered, Chordio hereby grants Customer, subject to the terms and conditions a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Free Trial to access and use the Service as made available as part of the Free Trial for Customer's internal evaluation purposes only. Free Trials are provided "as-is" without warranty of any kind. Chordio will have no liability arising out of or in connection with Free Trials. Any Free Trial that provides access to the Services must be used within the specified time of the Free Trial. At the end of the Free Trial period, Customer's use of that Service will expire and any further use of the applicable Service is prohibited unless Customer purchases a Subscription for the applicable features. Customer may be required to enter payment information in order to sign up for a Free Trial, but will not be charged by Chordio until the Free Trial has expired.
[Modifications.] Customer acknowledges that Chordio may modify the features and functionality of the Service during the Subscription Term. Chordio shall provide Customer with commercially reasonable advance notice of any deprecation of any material feature or functionality.

ACCOUNTS.

[Account Information; Access.] To access and use the Service, Customer must create an account for accessing the Service (an "Account"). When creating an Account, Customer will ensure that the information provided is accurate, complete, and current at all times. Chordio shall use and store all information about Customer and Authorized Users provided to Chordio in connection with the creation and use of Customer's Accounts on the Services including, without limitation, names, , email addresses, and other contact information ("Account Information") in accordance with Chordio's privacy policy located at https://chodrio.com/privacy as may be updated by Chordio from time to time in its sole discretion ("Privacy Policy"). The Privacy Policy does not apply to Customer Data, the treatment of which is governed pursuant to Section 6.3. Customer will ensure its Authorized Users comply with this Agreement and is responsible for any and all actions taken using Accounts and passwords of Authorized Users. Customer shall notify Chordio as soon as reasonably practicable of any unauthorized use of any Account or any other known or suspected breach of security.

FEES; PAYMENT.

[Fees and Payment.] Customer will pay Chordio all fees of the type and amount set forth in an applicable Order ("Fees"). Unless otherwise set forth in an Order, Fees for access to and use of the Service will be invoiced in advance on an annual basis. In order to purchase a Subscription or Professional Services, Customer must provide a valid payment method of the type requested or permitted by Chordio (the "Payment Method"). Customer agrees that Chordio may authorize its third party payment processor to charge the Payment Method for any amounts due and payable by Customer hereunder. Customer agrees to immediately update its Payment Method in the event of a change in Customer's Payment Method. If fees for Professional Services are not set forth on the Order, such fees will be paid for services to be rendered at Chordio's then-current time and materials rates. Except as may be otherwise approved by Chordio from time to time, (i) all Fees are non-cancellable, non-refundable, and non-recoupable; and (ii) all Fees are due and payable in United States dollars, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by law. If Customer fails to make any payment hereunder when due: (a) Customer agrees to pay all amounts due upon demand; and/or (b) Chordio may either terminate or suspend Customer's Account or Subscription and continue to attempt to charge the Payment Method until payment is received. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Chordio within 15 days after written notice of nonpayment of any amounts owed to Chordio, which may be provided any time after any amount becomes past due, Chordio may immediately terminate this Agreement.
[Subscriptions]. If Customer purchases a Subscription, the Subscription will continue for the period identified on the Order (the "Initial Subscription Period") and will then be automatically renewed for additional periods of the same duration as the Initial Subscription Period (each a "Renewal Subscription Period") at Chordio's then-current fees for such Subscription. For purposes of this Agreement, the Renewal Subscription Periods and the Initial Subscription Period, are referred to individually as a "Subscription Period" and collectively as the "Subscription Term." Customer may cancel the Subscription prior to the start of a Renewal Subscription Period by logging into the Account and going to the "Account Settings" page. Customer agrees that any termination of a Subscription will be effective as of the end of the then-current Subscription Period.
[Subscription Upgrades.] If Customer chooses to upgrade its Subscription in the middle of a Subscription Period, such upgrade will take effect immediately and any incremental Fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Subscription Period, the Fees will reflect any such upgrades.
[Subscription Downgrades.] If Customer chooses to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Subscription Period. Downgrading a Subscription may cause loss of content, features, or capacity of the Service as available, and Chordio does not accept any liability for such loss.
[Taxes.] The payments required under this Agreement do not include any sales, use or value added tax and any other equivalent tax ("Sales Tax") that may be due in connection with the services provided under this Agreement. If Chordio determines it has a legal obligation to collect a Sales Tax from Customer in connection with this Agreement, Chordio shall collect such Sales Tax in addition to the payments required under this Agreement. If payments for any Services under the Agreement are subject to any Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to Chordio, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify Chordio for any liability or expense Chordio may incur in connection with such Sales Taxes. Customer agrees to make all payments of fees to Chordio free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Chordio will be Customer's sole responsibility, and Customer will provide Chordio with official receipts issued by the appropriate taxing authority, or such other evidence as Chordio may reasonably request, to establish that such taxes have been paid.
PROPRIETARY RIGHTS. Customer acknowledges that Chordio owns and retains all rights, title, and interest, including all intellectual property rights, in and to the Chordio Platform, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein, and nothing in the Agreement shall preclude or restrict Chordio from using or exploiting any concepts, ideas, techniques or know-how of or related to the Chordio Platform or otherwise arising in connection with Chordio's performance under the Agreement. Other than as expressly set forth in the Agreement, no licenses or other rights in or to the Chordio Platform are granted to Customer and all such rights are hereby expressly reserved.

TERM; TERMINATION.

[Term]. This Agreement will begin on the date Customer accepts it (in accordance with the preamble) (the "Effective Date") and continue in full force and effect until terminated in accordance with the Agreement.
[Termination]. This Agreement will automatically terminate in the event that Customer cancels a Subscription and does not enter into another Subscription for a period of 30 days. Either party may terminate the Agreement by written notice in the event: (a) the other Party commits any material breach of the Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach; or (b) subject to applicable law, upon the other Party's liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other Party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
[Effect of Termination]. Upon the effective date of the expiration or termination of the Agreement for any reason: (a) Customer's access to the Service, and the licenses granted to Customer hereunder will automatically terminate; (b) all outstanding payment obligations of Customer will become due and payable immediately; and (c) Customer shall immediately return, or at Chordio's request destroy and certify the destruction of any tangible embodiments of Chordio's Confidential Information. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1.3, 3, 4, 5.3, and 6 through 11.

CONFIDENTIALITY.

[Definition]. "Confidential Information" means: (a) any information disclosed, directly or indirectly, by or on behalf of one party ("Disclosing Party") to the other party ("Receiving Party") pursuant to the Agreement that is designated as "confidential," or in some other manner to indicate its confidential nature; and (b) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the Chordio Platform, the functionality and performance of the Chordio Platform, including all enhancements and improvements thereto are the Confidential Information of Chordio. The Customer Data is the Confidential Information of Customer. However, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act of the Receiving Party; (b) was already in the Receiving Party's possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party's contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party.
[Use; Maintenance]. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except: (a) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (b) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party's having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of the other party's Confidential Information, and will take at least those measures taken to protect its own most highly confidential information.
[Customer Data]. Customer agrees that Chordio may use Customer Data as necessary to make available the Service, perform its obligations hereunder, and improve the Service, including, without limitation, performing any required, usual, appropriate, or acceptable activities relating to the Service, such as: (i) providing or supporting the use of the Service, performing Professional Services, and carrying out the business of which the Service is a part; (ii) training Chordio's machine learning algorithms and improving Chordio's fraud detection techniques; (iii) carrying out any benefits, rights, and obligations relating to the Service; (iv) maintaining records relating to the Service; and (v) complying with any legal or self-regulatory obligations relating to the Service. Customer agrees that Chordio may also use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any: (a) aggregated non-personally identifiable information related to any usage of the Service to operate and improve Chordio's products and services; and (b) suggestions, requests and feedback provided by or on behalf of Customer regarding the Chordio Platform. Customer acknowledges and agrees that, notwithstanding anything to the contrary herein, Chordio may, in its sole discretion, erase or delete from the Service any Customer Data that it reasonably believes is illegal, harmful, objectionable, lewd, not related to the function of or necessary for the use of the Service, or that Chordio determines may, as a result of Chordio possessing such data, harm Chordio's business or reputation.

INDEMNIFICATION.

[Indemnity by Chordio]. Chordio will defend Customer against any claim, demand, suit, or proceeding ("Customer Claim") made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer in connection with any such Customer Claim (or any settlement approved by Chordio); provided that: (i) Customer will promptly notify Chordio of such Customer Claim; (ii) Chordio will have the sole and exclusive authority to defend and/or settle any such Customer Claim (provided that Chordio may not settle any Customer Claim without Customer's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability); and (iii) Customer reasonably cooperates with Chordio in connection therewith. If the use of the Service by Customer has become, or in Chordio's opinion is likely to become, the subject of any claim of infringement, Chordio may at its option and expense: (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing (with comparable functionality); or (c) if the options in clauses (a) or (b) are not reasonably practicable, terminate the Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Chordio will have no liability or obligation with respect to any Customer Claim to the extent such Customer Claim is caused by: (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Documentation by Customer not in accordance with the Agreement; (C) modification of the Documentation by any party other than Chordio or a third party on Chordio's behalf; (D) Customer's Confidential Information, including Customer Data; or (E) the combination, operation or use of the Documentation with other applications, portions of applications, product(s) or services, including the Customer's computing environment where the Service would not by itself be infringing (clauses (A) through (E), "Excluded Claims"). This Section states Chordio's sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
[Indemnification by Customer]. Customer will: (i) defend Chordio against any Excluded Claim made or brought against Chordio by a third party, and Customer will indemnify Chordio for any damages finally awarded against Chordio in connection with any such Excluded Claim (or any settlement approved by Customer); or (ii) indemnify Chordio for any liability, damage, or loss incurred by Chordio as a result of any use of Documentation by any user permitted to access and use the Documentation by Customer; provided that: (s) Chordio will promptly notify Customer of such Excluded Claim; (b) Customer will have the sole and exclusive authority to defend and/or settle any such Excluded Claim (provided that Customer may not settle any Excluded Claim without Chordio's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Chordio of all liability); and (c) Chordio reasonably cooperates with Customer in connection therewith.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED "AS IS." CHORDIO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR EFFECTIVENESS OF THE CHORDIO PLATFORM OR RESULTS OR DATA GENERATED THEREFROM OR ANY DECISION OR ACTION TAKEN BY CUSTOMER AS A RESULT OF ANY OF THE FOREGOING. CHORDIO DOES NOT WARRANT THAT THE CHORDIO PLATFORM WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DOCUMENTATION OR DATA PROVIDED BY OR THROUGH THE CHORDIO PLATFORM, WILL BE ACCURATE OR COMPLETE, OR, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THAT CHORDIO'S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS AND BREACHES OF CONFIDENTIALITY OBLIGATIONS: (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING LOST PROFITS), HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY'S TOTAL LIABILITY (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT (EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS) WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

GENERAL PROVISIONS.

[Electronic Communications.] The communications between Customer and Chordio may take place via electronic means, whether Customer sends Chordio e-mails, or whether Chordio posts notices within the Service, or communicates with Customer via e-mail. For contractual purposes, Customer: (a) consents to receive communications from Chordio in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Chordio provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer's statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
[Notice.] Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (a) if to Customer, the address provided by Customer during the Account registration process (or as otherwise later changed by Customer in its Account); and (b) if to Chordio, 1017 Pine Crest Circle NE, Issaquah, Washington 98029, Attn: Legal] (or at such other address as may be given by Chordio at any time) and shall be deemed to have been received by the addressee; (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the third business day after such notice is deposited in the mail; (iv) if given by email, upon sending of an email.
[Updates to this Agreement; Waivers.] Chordio may supplement, amend or otherwise modify this Agreement at any time, by providing Customer with at least 30 days' notice thereof (electronic notice is sufficient) and such changes will go into effect at the beginning of the next Subscription Period, or if Customer has no Subscription then in effect, immediately after such 30 day period. Except as set forth in the preceding sentence, no supplement, amendment or modification of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. To the extent these Terms conflict with any Order, the Terms shall control.
[Entire Agreement]. This Agreement, together with any Order, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, provided that if Customer and Chordio have executed a separate, negotiated, written agreement with respect to the subject matter hereof, such separate agreement will apply to the exclusion of this Agreement. No terms, provisions or conditions of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, nor have any effect on the rights, duties or obligations other parties hereunder or otherwise modify this Agreement and any such document relating to this Agreement will be for administrative purposes only and will and will have no legal effect, regardless of whether either party executes such document or fails to object to such terms, provisions or conditions. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation of the Agreement.
[Severability.] Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision.
[Relationship of Parties.] The relationship between the parties shall be that of independent contractors. Chordio may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Chordio shall remain responsible hereunder for any such subcontractor's performance.
[Rights of Third Parties.] This Agreement is between Chordio and Customer. No other person shall have any rights or obligations pursuant to this Agreement, including the right to enforce any of its terms.
[Assignment]. Neither party may assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other party, except that either party may assign the Agreement without consent to a successor as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
[Force Majeure]. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
[Governing Law]. The Agreement shall be governed by and construed under the laws of the State of Washington without reference to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 10.13, if a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
[Publicity]. Chordio may use Customer's name as a reference for marketing or promotional purposes on Chordio's website and in other communication with existing or potential Chordio customers.
[Government Rights]. Chordio provides the Chordio Platform, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Service shall constitute "commercial" computer software. Government technical data and software rights related to the Service includes only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are 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 this Agreement, it must negotiate with Chordio 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.
[Arbitration]. The parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association ("AAA"). The arbitration will be conducted in English in the State of Washington. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator's decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 10.13 will not prohibit either party from: (a) bringing an individual action in small claims court; (b) seeking injunctive or other equitable relief in a court of competent jurisdiction; (c) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (d) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 10.13 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 10.13 will govern any action arising out of or related to the Agreement.
[Export Compliance and Use Restrictions.] Each party represents that it is not named on any U.S. government restricted-party list, and Customer will not permit any Authorized User to access or use any Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea), or for any prohibited end use (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes). The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.

DEFINITIONS.

"Authorized Users" means Customer's employee or contractor personnel authorized by Customer to access and use the Service.
"Chordio Platform" means, collectively, the Service, Dashboard, Documentation, and any other services to be provided pursuant to the Agreement.
"Customer Data" means all information, text, files, content or other materials, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the use of the Service.
"Dashboard" means the web-based user interface for Customer to access portions of the Service.
"Documentation" means any user instructions, manuals, on-line help files, or other materials that are provided by Chordio in connection with the Service.
["Professional Services" means the implementation and training services, if any, identified in an Order.]