This Confidential Subscription and Maintenance Agreement ("AGREEMENT") is made and entered into this day by and between Consciat, Inc, owner of Jobtru, having an address at 396 Mallard Rd., Weston, Florida 33327 (hereinafter referred to as COMPANY) and the CUSTOMER, as registered at Jobtru, (hereinafter referred to as the CUSTOMER).
This AGREEMENT governs CUSTOMER’s trial and use of the products and services provided to CUSTOMER by COMPANY as detailed in this AGREEMENT and as set forth below. If CUSTOMER purchases COMPANY’s services, this agreement will also govern CUSTOMER’s purchase and the ongoing use and maintenance of those products and services provided to CUSTOMER. This AGREEMENT is binding and effective as of the date CUSTOMER accepts and signs below.
BY ACCEPTING AND SIGNING THIS AGREEMENT CUSTOMER AGREES TO THE TERMS STATED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS, MAY NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES OFFERED AND/OR PROVIDED. FAILURE TO COMPLY WITH THIS MANDATORY CONDITION WILL RESULT IN YOUR ACCEPTANCE OF PERSONAL LIABILITY FOR ALL OBLIGATIONS THAT WOULD HAVE INNURED TO THE COMPANY AMONGST OTHER PENALTIES.
CUSTOMER acknowledges that during the term of this AGREEMENT, it will have access to and become acquainted with proprietary software, various inventions, innovations, processes, information, order forms, business and marketing plans, technology and technical information, product plans and designs, and business processes, records and specifications and/or trade secrets owned or licensed by the COMPANY and/or used by the COMPANY in connection with the operation of its business and the services provided to the CUSTOMER. CUSTOMER agrees that it will maintain the confidentiality of this information as further described in detail in the PROPRIETARY RIGHTS ACKNOWLEDGEMENT form, attached to this AGREEMENT and marked as Exhibit “A.” CUSTOMER agrees that it will not disclose any of the aforesaid, directly or indirectly with any person or entity not a party to this AGREEMENT, or use any of said items in any manner not specifically agreed to herein. All software, files, records, documents, inventions, innovations, processes, specifications, information, letters, notes, lists, original creations, and similar items relating to the business of the CUSTOMER shall remain the exclusive property of the COMPANY, however, the actual data shall be the exclusive property of the CUSTOMER.
CUSTOMER agrees that it will not disclose the terms of this AGREEMENT to any person without the prior written consent of the COMPANY, and shall at all times preserve the confidential nature of the relationship with the COMPANY and of the services provided hereunder and/or in connection herewith.
The confidential information of the COMPANY, whether developed by the COMPANY or other agents of the COMPANY, has been acquired at substantial expense by, and for the account of the COMPANY, and is a valuable trade secret of the COMPANY. The COMPANY would not enter into this AGREEMENT and make such information available to CUSTOMER unless the COMPANY was assured that all such information will be held in trust and confidence by CUSTOMER and not used by CUSTOMER in any manner other than for the particular business use created by the COMPANY for use by the CUSTOMER. Accordingly, CUSTOMER agrees that a breach of this confidentiality provision may cause irreparable harm and that injunctive relief will be required to remedy any such breach.
As used herein, Confidential Information means all confidential information disclosed by a party Disclosing Party to the other party Receiving Party, whether verbally 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. CUSTOMER’s Confidential Information shall include CUSTOMER Data.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this AGREEMENT, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such 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.
Without limiting the above, COMPANY shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of CUSTOMER’s data, including taking standard industry measures to backup all CUSTOMER data stored using the Services. COMPANY will ensure CUSTOMER’s data is backed up each day. COMPANY will retain no less than seven (7) backups at any one time which will be for the last seven (7) previous days of CUSTOMER’s data.
CUSTOMER may not order, use and/or access the products and services provided to CUSTOMER by COMPANY if CUSTOMER is a software or business competitor of our business, unless CUSTOMER discloses its identity and obtain our written consent prior to engaging the COMPANY’s services. CUSTOMER is also prohibited from ordering, using and/or accessing the products and services provided to CUSTOMER by COMPANY if CUSTOMER intent is to monitor the COMPANY’s product(s), availability, performance and/or functionality, or for any other benchmarking or competitive purposes. Breach of this condition will be a material breach of this AGREEMENT and actionable at law and through injunctive relief.
Provision of Purchased Services. We shall make the Purchased Services available to CUSTOMER pursuant to this Agreement and the relevant Order Forms during a subscription term. CUSTOMER agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
COMPANY’s Responsibilities. COMPANY shall: (i) provide CUSTOMER basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 10 hours a day, 5 working days a week, except for: (a) planned downtime (of which COMPANY shall give at least 8 hour’s notice via the Purchased Services and which COMPANY shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond COMPANY’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving COMPANY’s employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
CUSTOMER’s Responsibilities. CUSTOMER shall (i) be responsible for Users compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of CUSTOMER’s data and of the means by which CUSTOMER acquired said data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify COMPANY promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. CUSTOMER shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services 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 the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls CUSTOMER are permitted to make against COMPANY’s application programming interface, and, for Services that enable CUSTOMER to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable CUSTOMER to monitor CUSTOMER’s compliance with such limitations.
Acquisition of Third-Party Products and Services. COMPANY may offer Third-Party Applications for sale under Order Forms. Any other acquisition by CUSTOMER of third-party products or services, including but not limited to Third- Party Applications and implementation, customization and other consulting services, and any exchange of data between CUSTOMER and any third-party provider, is solely between CUSTOMER and the applicable third-party provider. COMPANY does not warrant or support third-party products or services, whether or not they are designated by COMPANY as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
Third-Party Applications and CUSTOMER Data. If CUSTOMER installs or enables Third-Party Applications for use with Services, CUSTOMER acknowledges that COMPANY may allow providers of those Third-Party Applications to access CUSTOMER’s data as required for the interoperation of such Third-Party Applications with the Services. COMPANY shall not be responsible for any disclosure, modification or deletion of CUSTOMER’s data resulting from any such access by Third-Party Application providers. The Services shall allow CUSTOMER to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
User Fees. CUSTOMER shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
Invoicing and Payment. COMPANY will invoice CUSTOMER one month in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 20 days from the invoice date. CUSTOMER is responsible for maintaining complete and accurate billing and contact information in the Services. The first invoice will charge the first two months of this agreement.
Overdue Charges. If any charges are not received from CUSTOMER by the due date, then at COMPANY’s sole and absolute discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) COMPANY may condition future subscription renewals and Order Forms on payment terms shorter than those specified herein.
Payment Disputes. COMPANY shall not exercise COMPANY’s rights hereunder (Overdue Charges) if the applicable charges are under reasonable and good-faith dispute and CUSTOMER is cooperating diligently to resolve the dispute.
Taxes. Unless otherwise stated, COMPANY’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value- added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). CUSTOMER is responsible for paying all Taxes associated with CUSTOMER’s purchases hereunder. If COMPANY has the legal obligation to pay or collect Taxes for which CUSTOMER is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by CUSTOMER, unless CUSTOMER provide COMPANY with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, COMPANY is solely responsible for taxes assessable against it based on COMPANY’s income, property and employees.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, COMPANY reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to CUSTOMER hereunder other than as expressly set forth herein.
Restrictions. CUSTOMER shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on CUSTOMER’s own intranets or otherwise for CUSTOMER’s own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Ownership of CUSTOMER Data. As between COMPANY and CUSTOMER, CUSTOMER exclusively own all rights, title and interest in and to all of CUSTOMER’s Data.
Suggestions. COMPANY shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by CUSTOMER, including Users, relating to the operation of the Services.
Federal Government End Use Provisions. COMPANY provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with COMPANY to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
Company Warranties. COMPANY warrants that (i) the Services shall perform materially in consistence with the industry's general standards, and (ii) the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, CUSTOMER’s exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification by COMPANY. COMPANY shall defend CUSTOMER against any claim, demand, suit, or proceeding Claim made or brought against CUSTOMER by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and in the event that a final judgment is rendered by a court of competent jurisdiction finding a fact that the use of the Services provided by COMPANY as part of the AGREEMENT were appropriated by COMPANY illegally, then COMPANY shall indemnify CUSTOMER for damages paid by CUSTOMER to the plaintiff in said action, and for reasonable attorney’s fees incurred by CUSTOMER in defense of such Claim; provided, that CUSTOMER does the following: (a) promptly gives COMPANY written notice of the Claim prior to the initiation of any litigation (or if not possible because no notice was given to it, then immediately after service of the complaint filed against it); (b) give COMPANY sole control of the defense and settlement of the Claim; and (c) provide to COMPANY with all reasonable assistance required to defend the action.
Indemnification by CUSTOMER. CUSTOMER shall defend COMPANY against any claim made or brought against COMPANY by any third party alleging that CUSTOMER’s Data, or CUSTOMER’s use of the Services provided for in this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and in such event, CUSTOMER shall indemnify COMPANY for any damages finally awarded, and for reasonable attorney’s fees incurred by COMPANY in connection with any such Claim.
Exclusive Remedy. This Section 9 (Mutual Indemnification) 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.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $20,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS. THE FOREGOING SHALL NOT LIMIT THE INDEMNIFYING PARTY’S LIABILITY AND OBLIGATIONS REGARDING INDEMNIFICATION.
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Term of Agreement. This Agreement commences on the date accepted by the CUSTOMER and continues until all User subscriptions granted in accordance with this AGREEMENT have expired or been terminated.
Term of Purchased User Subscriptions. User subscriptions purchased by CUSTOMER commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least six months or a period equal to the expiring subscription term (whichever is shorter) before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given CUSTOMER written notice of a pricing increase, in which case the pricing increase shall be effective upon renewal and thereafter.
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach and such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. In the event a termination for cause is issued by the CUSTOMER and the COMPANY having reviewed same and agreeing with the finding(s) stated by the CUSTOMER therein, the COMPANY shall refund CUSTOMER any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by COMPANY, CUSTOMER shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve CUSTOMER of the obligation to pay any fees payable to COMPANY for the period prior to the effective date of termination.
Return of Customer’s Data. Upon written request by CUSTOMER made within 30 days after the effective date of termination or notice of non-renewal of a Purchased Services subscription, COMPANY will make available to CUSTOMER for download a file of CUSTOMER’s data in comma separated value (.csv) format along with attachments in their native format. CUSTOMER’s data will be available within two business days of such a request. After 30 days after the effective date of termination, COMPANY shall have no obligation to maintain or provide any of CUSTOMER’s data and shall thereafter, unless legally prohibited, delete all of CUSTOMER’s data in COMPANY’s systems or otherwise in COMPANY’s possession or control.
Consulting Services to Support CUSTOMER’s Transition to Comparable Service. Upon request by CUSTOMER made after a notice of termination or notice of non-renewal of a Purchased Services subscription, COMPANY will provide consulting services to assist CUSTOMER in porting CUSTOMER’s data for use with another system at an hourly rate not to exceed the most recent hourly rate that COMPANY and CUSTOMER has agreed to for the provision of consulting services by COMPANY.
Extending Effective Date of Termination. CUSTOMER may extend the effective date of termination at any time prior to such effective date by providing COMPANY with notice that CUSTOMER has not yet transferred CUSTOMER’s data for use with another service. Such notice will automatically extend the effective date of termination by 60-days. There is no limit to the number of times that CUSTOMER may extend the Effective Date of Termination.
Surviving Provisions. The following portions of the AGREEMENT shall survive any termination or expiration of this AGREEMENT: Confidentiality; Fees and Payment for Purchased Services; Proprietary Rights; Disclaimer; Indemnification; Limitation of Liability; Refund or Payment upon Termination; Return of Data; Consulting Services to Support Customer’s Transition to Comparable Service; Extending Effective Date of Termination; Notices, Governing Law and Jurisdiction; and all General Provisions.
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 second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices are effective upon receive. The parties will send notices to:
Dario Loriato
Consciat, Inc.
396 Mallard Rd,
Weston, FL 33327
Email: dario@consciat.com
Either party may change its address upon written notice to the other, as required by this Section.
Agreement to Governing Law and Jurisdiction. Each party agrees that the Agreement will be governed by, construed and enforced in accordance with the laws of the State of Florida without regard to its principles of conflict of laws. Each party agrees that any action, suit or proceeding arising out of this Agreement, shall be initiated exclusively in the state or federal courts located in Broward County in the State of Florida to the exclusion of any court in the world.
Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) CUSTOMER shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Attorney Fees. In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs, fees relating to litigation at the pre-trial phase, the trial phase, in connection with appeals at all appellate levels, in connection with post-judgment proceedings, in connection with administrative proceedings, in connection with bankruptcy proceedings and any other costs of collection) and the enforcement of any remedy. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs and shall include reasonable computer legal research fees and costs.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, COMPANY shall refund to CUSTOMER any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties 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 shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in CUSTOMER’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Generally. If the CUSTOMER requests, COMPANY agrees to deposit data files to independently operate the Services and access CUSTOMER’s data without COMPANY’s software (the “Consciat Software” or the “Jobtru Software”) in an escrow account with CUSTOMER as designated beneficiaries in accordance with the provisions set forth in Exhibit “B.”
This ACKNOWLEDGMENT is executed and delivered by the undersigned CUSTOMER of the COMPANY for the benefit of the COMPANY. In consideration and exchange for the opportunity to enter and maintain a business relationship with the COMPANY, the terms of which are set forth in the Confidential Subscription and Maintenance Agreement to which this Proprietary Rights Acknowledgment is a material part of, CUSTOMER hereby acknowledges and agrees to the following: