These Cedexis Master Subscription Terms between Cedexis Inc. a Delaware corporation, doing business at 421 SW 6th Avenue, Suite 700, Portland, Oregon, 97204 USA and you, the Client (the “Agreement”). This Agreement governs the Client’s subscription to and use of the Cedexis Services as purchased under one or more Order Forms, which incorporate the terms of this Agreement by reference.
1.1 “Affiliate” means an entity that currently controls is controlled by, or is under common control with Client, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
1.2 “Authorized User” means Client’s employees, representatives, consultants, contractors, Affiliates or agents who are authorized to access the Service and have been supplied user IDs and passwords. Client represents and warrants that each User is an authorized Client agent.
1.3 “Cedexis Tag” means software provided by Cedexis which is either deployed to or loaded by a Client’s website, application or infrastructure for the purpose of collecting Traffic and Performance Data (defined below).
1.4 “Client Data” means information submitted by Client to or via the Service. For the avoidance of doubt, Client Data does not include Performance and Traffic Data.
1.5 “Documentation” means the instructions in the online help files that Cedexis provides for use in connection with the Service.
1.6 “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property rights, derivatives thereof, and similar forms of protection.
1.7 “Order Form” means a document detailing the Subscription(s) to be provided by Cedexis, the Subscription Term, the associated fees, and any other transaction-specific terms and conditions, in the form attached hereto as Exhibit A.
1.8 “Service” means the applicable services set forth in each Order Form.
1.9 “Subscription Term(s)” means the period(s) during which Cedexis will provide the Service as specified in the Order Form.
1.10 “Performance and Traffic Data” means the data both produced and collected by Cedexis during delivery of the Services.
2. PROVISION OF SUBSCRIPTION.
2.1 Access Rights. Unless otherwise provided in the applicable Order Form, Services are purchased as a subscription. Cedexis hereby grants Client a non-exclusive, non-sublicenseable, nontransferable right to access and use the Services during the Subscription Term, solely for Client’s internal business purposes. Cedexis and its licensors reserve all rights to the Services not expressly granted in this Agreement. Cedexis reserves the right to create and maintain administrative, support, system, and maintenance accounts within the Service, all with the necessary data access for Cedexis and its assigned operators and/or other service providers to deliver the Service.
2.2 Access Restrictions. Client will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Service or Cedexis Tag; (ii) modify or create derivative works based on the Service or Cedexis Tag; (iii) create Internet “links” to the Service or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer, access or use the Service or Cedexis Tag to build a product using ideas, features, functions or graphics similar to the Service or Cedexis Tag, or (iii) copy any ideas, features, functions or graphics of the Service. Client will not use the Service to interfere with or disrupt the integrity or performance of the Service or the data contained therein. Client will not attempt to gain unauthorized access to the Service or its related systems or networks. Client will not provide or disclose to, or permit use of the Services by, persons other than Client’s employees and contractors who are under a legally binding obligation of confidentiality consistent with this Agreement. Cedexis reserves the right to suspend and/or terminate this Agreement and the applicable access rights in the event of any breach of this Section. Such suspension and/or termination will be without prejudice as to Cedexis’ other rights and remedies, and without penalty for Cedexis or liability to Client.
2.3 Affiliates Use. Client may grant Affiliate(s) access the Services, provided that any act or omission by an Affiliate in breach of this Agreement will be deemed a breach by Client. Further, Client’s Affiliates may purchase Services under the terms of this Agreement by executing an Order Form that specifically references the terms of this Agreement.
3. USAGE LIMITS. Services are subject to usage limits, including, for example, the quantities of decisions listed in an Order Form. If Client exceeds a contractual usage limit, Client agrees to be invoiced for additional usage at Cedexis’ then current list price or at the applicable pricing referenced in the corresponding Order Form.
4. CLIENT RESPONSIBILITIES. Client will be responsible and liable for any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Client’s account or providing and/or receiving Client Data or other information through the Service. Client will be responsible for maintaining the confidentiality of User access information (including each User ID and password). Client will: (i) notify Cedexis immediately of any breach or suspected breach of the immediately preceding sentence; (ii) notify Cedexis immediately of any unauthorized use of any password or account or any other known or suspected breach of security with the potential to affect the Service(s); (iii) report to Cedexis immediately and use reasonable efforts to stop immediately any copying or distribution of Cedexis Tag that is known or suspected by Client or Client’s Users.
5. TAG DEPLOYMENT. Unless otherwise specified in the applicable Order Form, and if applicable, Client acknowledges and agrees that Subscription to the Services is offered contingent upon Client’s agreement to deploy the Cedexis Tag on its public-facing websites for the purpose of collecting Performance and Traffic Data. Cedexis may suspend or terminate a Client’s subscription if Client has not deployed the Cedexis Tag within 90 days of the start of the Subscription Term.
6.1 By Client. As between Cedexis, and Client, Client owns all right, title and interest, including all related Intellectual Property Rights, in and to its pre-existing intellectual property, including the Client Data (collectively, the “Client IP”). Client agrees not to share with Cedexis any Client IP relating to the Service(s) without promptly providing written notice to Cedexis identifying it as Client IP.
6.2 By Cedexis. As between Cedexis and Client, Cedexis owns all right, title and interest, including all related Intellectual Property Rights, in and to its pre-existing intellectual property, the Service and all Performance and Traffic Data (collectively, “Cedexis IP”), any and all suggestions, ideas, enhancement requests, and feedback relating to Cedexis IP. Client hereby assigns to Cedexis all right, title and interest to all such other intellectual property, including all related Intellectual Property Rights, and to the extent not assignable, Client hereby grants Cedexis a non-exclusive, irrevocable, transferable, royalty-free, fully paid-up right and license, with the right to sublicense through multiple tiers, to reproduce, copy, modify, distribute, perform, display, make, have made, import, use, have used, offer for sale, sell, have sold, make derivative works of, and fully exploit in any way and for any purpose, all such Ideas, in whole and in part, without any limitation of time, field, or technology, known or unknown. To the extent that such rights (including but not limited to “artists rights” or “moral rights”) to which may not be so licensed, Client unconditionally and irrevocably waives (on behalf of itself and its personnel) the enforcement of such right, and all claims and causes of action of any kind against Cedexis with respect thereto, and agrees, at Cedexis’ request and expense, to consent to and join in any action to enforce such rights on Cedexis’ behalf.
7. SECURITY/DATA INTEGRITY. Cedexis will maintain reasonable administrative, physical, and technical safeguards designed to protect Client Data (at least as rigorous as the safeguards Cedexis uses to protect its own data). In addition, Cedexis will not: (a) modify or disclose Client Data except as compelled by law or as Client expressly permits in writing, or (b) access Client Data except to provide the Services or prevent or address service or technical problems, or at Client’s request in connection with Client support matters. Upon request, Cedexis will provide additional information regarding Cedexis’ data security policies and procedures. Client acknowledges that it is not feasible for Cedexis to accommodate conflicting data security requirements from multiple Cedexis clients; accordingly, in the event of a conflict between Cedexis’ data security policies and procedures and any additional or different policies and procedures that Client requests that Cedexis follow, Cedexis will use good faith efforts to accommodate Client’s request if feasible; however, failure to accommodate Client’s request will not be deemed a breach of this Agreement. For the avoidance of doubt, Cedexis does not warrant that Client’s use of the Services is risk-free. Cedexis does not provide representations, warranties, or assurances against interception or access and, provided Cedexis complies with the other provisions of this Section 7, Cedexis will not be responsible for any theft, illegal activity or other unauthorized acts resulting in loss of or damage to Client and/or Client’s computer, data or other property in connection with Client’s use of the Service(s).
8. FEES AND PAYMENT TERMS. Client will pay all invoices issued. Unless otherwise provided in the applicable Order Form, invoices will be issued upon commencement of the Subscription Term and additional periodic invoices may be issued for exceeded usage and renewals of the Subscription Term, in accordance with Section 3 above. Amounts are due and payable in full, without setoff or deduction, within thirty (30) days following the invoice date and are payable in U.S. dollars unless otherwise agreed. If Client reasonably disputes any invoiced amount in good faith, Client will notify Cedexis of such dispute in writing.
8.1 The fees outlined in an Order Form will apply to both the initial term as well as any renewal terms. Fees may not be modified during the initial term. Cedexis reserves the right to modify its fees and charges upon at least thirty (30) days’ notice prior to any subsequent renewal Subscription Term; any fee adjustments will take effect upon the commencement of the subsequent Subscription Term.
8.2 Cedexis’ fees are exclusive of all taxes, levies, or duties, and Client will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Cedexis’ income. Client will make all payments of fees to Cedexis free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees to Cedexis will be Client’s sole responsibility, and Client will provide Cedexis with official receipts issued by the appropriate taxing authority, or such other evidence as Cedexis may reasonably request, to establish that such taxes have been paid. Client agrees to indemnify, defend, and hold Cedexis, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Client’s failure to report or pay any such taxes, duties or assessments.
8.3 Cedexis may suspend or terminate this Agreement and Client’s access to the Service if Client is more than 60 days past due on any invoice. Unpaid amounts are subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all expenses of collection. Client will continue to be charged for Services during any period of suspension.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Cedexis Representations and Warranties.
(a) Cedexis represents and warrants that it has the full corporate power and authority to enter into this Agreement.
(b) Cedexis warrants that the applicable hosted Service, when used in accordance with the Documentation, will conform to the Documentation in all material respects. Client will have thirty (30) days following the initial provision of any Service to notify Cedexis of a breach of the foregoing warranty. CEDEXIS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) ERRORS OR DEFECTS WILL BE CORRECTED, OR (C) THE SERVICE IS FREE OF HARMFUL CODE. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 10.1 (REPRESENTATIONS AND WARRANTIES), CEDEXIS DISCLAIMS ALL LIABILITY FOR ANY SERVICE ERRORS OR ACCESS ISSUES. ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM LEGALLY PERMISSIBLE EXTENT. CEDEXIS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CEDEXIS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN ADDITION, CEDEXIS RESERVES THE RIGHT TO UPGRADE, ADD TO, OR MODIFY THE SERVICE WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY SO LONG AS SUCH CHANGES TO THE SERVICE DO NOT RESULT IN A MATERIAL DIMINUTION IN THE SERVICES FROM THAT ORIGINALLY PURCHASED UNDER THIS AGREEMENT AND THE ORDER FORM. CLIENT’S PURCHASES HEREUNDER ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY NOR DEPENDENT ON ANY STATEMENTS REGARDING FUTURE FUNCTIONALITY.
(c) Cedexis represents that it has obtained and during the Term will maintain all rights, approvals, and consents necessary to perform its obligations and grant all rights and licenses granted to Client herein. Cedexis’ entire liability and Client’s sole and exclusive remedy will be indemnification against third-party claims as provided in Section 11 (Indemnification). For the avoidance of doubt, this paragraph shall provide Client with no right of action against Cedexis, and Client hereby waives all such rights and agrees not to seek to enforce, through judicial action or otherwise, any right that cannot be waived
(d) Cedexis represents that it shall use reasonable technical means to detect computer viruses, worms, time bombs, Trojan horses, or other known harmful, malicious or destructive code (collectively, “Harmful Code”) within the Services. Client acknowledges that current technology used to detect Harmful Code may not protect against all Harmful Code and as such, Supplier does not warrant that the Service(s) or underlying Software are free from all Harmful Code.
(e) Cedexis’ entire liability and Client’s sole and exclusive remedy for breach of the foregoing warranties will be, at Cedexis’ discretion, to either: (i) reperform, modify, or replace the Service so that it so conforms to this warranty; or (ii) refund the fees paid for the affected Service, in which event this Agreement, and Client’s right to access the refunded Service will immediately terminate. Any remedy provided by Cedexis will not extend the original warranty period. Cedexis will have no obligation hereunder, and Cedexis makes no warranty with respect to, errors caused by or relating to use of the Service in a manner inconsistent with the Documentation or this Agreement
10.2 Client Representations and Warranties.
Client represents and warrants that it:
(a) has the full corporate power and authority to enter into this Agreement
(b) shall use reasonable technical means to detect Harmful Code, and in accordance therewith, to the best of Client’s knowledge, Client’s use or access of the Service(s) will not cause any such Harmful Code to be installed or introduced on Cedexis’ computer, telecommunications or other information systems
(c) will abide by all applicable laws, treaties and regulations in connection with use of the Service.
11.1 By Cedexis. Cedexis will indemnify and defend Client from and against any and all third party claims, costs, damages, losses, liabilities and expenses, including reasonable attorneys’ fees and costs by paying any amounts which are finally awarded by a court of competent jurisdiction or as agreed to in a monetary settlement of the claim, to the extent arising out of or in connection with a claim alleging that the Services directly infringes or misappropriates a copyright, trademark, or trade secret of a third party. Cedexis will have no indemnification obligation, and Client will indemnify Cedexis pursuant to this Agreement, for claims arising from any infringement or misappropriation to the extent arising from (i) Client’s use of the Service other than as permitted under this Agreement; (ii) the combination of the Service with any Client or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the Service or the Cedexis Tag by any party other than Cedexis or Cedexis’ agents. THE FOREGOING IS CEDEXIS’ SOLE AND EXCLUSIVE OBLIGATION FOR INFRINGEMENT CLAIMS.
11.2 By Client. Client will indemnify and hold Cedexis harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with any claim arising from any use of the Service other than as permitted under this Agreement.
11.3 Indemnity Process. Each party’s indemnification obligations are subject to the indemnified party: (a) promptly notifying the indemnifying party in writing regarding the claim; (b) giving the indemnifying party sole control of the defense and settlement of the claim (however, the indemnifying party may not settle any claim without the indemnified party’s written consent unless the settlement contains an unconditional release of the indemnified party regarding the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, however, such participation will be at the indemnified party’s sole expense.
12. LIMITATION OF LIABILITY
12.1 Cedexis’ liability shall not be limited or excluded in relation to: (a) death or personal injury caused by its negligence or intentional misconduct (or that of its employees or agents); (b) fraudulent misrepresentation; or (c) any other liability that cannot under applicable law be limited or excluded.
12.2 SUBJECT TO SECTION 12.1, CEDEXIS SHALL NOT BE LIABLE FOR: (A) LOSS OF PROFITS; (B) LOSS OF DATA; (C) LOSS OF REVENUE; (D) LOSS OF USE; OR (E) PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF CEDEXIS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 SUBJECT TO SECTION 12.1, CEDEXIS’ LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE, AN AMOUNT EQUAL TO THE AMOUNT PAID OR PAYABLE BY CLIENT IN THE 12 MONTHS PRIOR TO THE CLAIM FOR THE SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, SUCH DAMAGES SHALL BE CAPPED AT $1,000 USD.
13. CONFIDENTIALITY. “Confidential Information” means the terms and conditions of this Agreement, Cedexis pricing information, and any other information disclosed by one party to the other in connection with this Agreement which is either (a) clearly marked or identified as confidential or proprietary at the time of disclosure; or (b) information which a reasonable person would consider confidential given the nature of the information and circumstances of disclosure. Each party agrees that it will use the other party’s Confidential Information solely to perform its obligations under this Agreement. Neither party will directly or indirectly disclose the other party’s Confidential Information, to any third party without the other party’s prior written consent. However, either party may disclose such information to its employees, officers, directors and or subcontractors who have a need to know and who are bound in writing to keep such information confidential. Each party agrees to exercise due care in protecting the other party’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that the receiving party can document: (i) is in the public domain through no fault of its own; (ii) was known to it, without restriction, prior to disclosure by the disclosing party; (iii) was disclosed to it, without restriction, by another person with the legal authority to do so; (iv) is independently developed by the receiving party without use the disclosing party’s Confidential Information (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement. A receiving party may disclose Confidential Information if required pursuant to a judicial order; provided that, to the extent permitted by law and reasonably feasible under the circumstances, the receiving party provides to the disclosing party prior notice of the disclosure and an opportunity to respond to the disclosure.
15. TERM; TERMINATION.
15.1 Term; Termination. Unless terminated earlier for cause, this Agreement will commence on the Effective Date and will continue for the Subscription Term. This Agreement will automatically renew for additional successive renewal terms equivalent to the initial Subscription Term, unless either party provides at least thirty (30) days’ written notice of nonrenewal prior to the end of any applicable Subscription Term; provided, however, that the terms of this Agreement will continue to apply to any Order Forms that are still in effect. Either party may terminate this Agreement (or any Order Form) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach. Cedexis may immediately suspend or terminate this Agreement upon notice to Client that in Cedexis’ reasonable determination: (a) Client is in material breach of this Agreement, including, without limitation, breach of Sections 2.2, 2.3 or 10.2 or 11; (b) Client’s use of the Services is interfering with, or could reasonably be expected to interfere with, Cedexis’ operation or provision of any third-party’s use of the Services or any other business of Cedexis; or (c) the Client’s use of the Services is harming, or could reasonably be expected to harm, Cedexis’ reputation.
15.2 Effect of Termination; Survival. Upon the expiration or early termination of this Agreement, amounts (including expenses) owed to Cedexis for completed Services, as well as fees applicable to the duration of the terminated subscription, will be immediately due and payable, and all subscriptions granted hereunder and Cedexis’ obligation to provide the Service, and Client’s right to access the foregoing, will terminate. Upon Client’s request, Cedexis will provide to Client a file of the Client Data; otherwise, such information will be deleted following such termination. The following Sections will survive any termination or expiration of this Agreement: Section 1 (Definitions) and all other defined terms included in any surviving section; Section 6 (Ownership), Section 7 (Security/Data Integrity); Section 8 (Fees and Payment Terms); Section 9 (Use of Aggregate Information); Section (Effect of Termination/Survival), Section 10 (Representations and Warranties), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 13 (Confidentiality), and Section 16 (General).
16.1 Cedexis may give notice by either (a) means of a general notice on the Service; (b) by electronic mail to Client’s e-mail address on record in Cedexis’ account information; or (c) by written communication sent by first class mail to Client’s address on record. Notices will be deemed given 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email). Client may give notice to Cedexis (such notice will be deemed given when received by Cedexis) by letter sent to Cedexis at the address listed above, attention: CFO, or electronic mail to email@example.com.
16.2 This Agreement may not be assigned by Client without Cedexis’ prior written approval, except to an Affiliate of Client effective upon written notice to Cedexis; provided that (a) Client’s account is current; (b) such Affiliate is not a competitor of Cedexis; and (c) such Affiliate agrees in writing to comply with the terms and conditions of this Agreement. Any attempted assignment in violation of the foregoing will be null and void.
16.3 This Agreement will be governed by Oregon law, without regard to the conflicts of law provisions of any jurisdiction. Any claims arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts in Multnomah County, Oregon. Each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT.
16.4 Except as provided in Sections 10 (Representations and Warranties) and 11 (Indemnification), the parties’ rights and remedies hereunder are cumulative. Client acknowledges that the Service and Cedexis Tag contain Cedexis’ valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Cedexis for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy. The parties are independent contractors.
16.5 No joint venture, partnership, employment, or agency relationship exists between Client and Cedexis as a result of this Agreement or use of the Service.
16.6 If Client is a branch agency or instrumentality of the United States Government, the following provision applies. The Services, Cedexis Tag and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 22.7202-3.
16.7 The failure of Cedexis to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing.
16.8 All Client purchase orders under this Agreement will be subject only to this Agreement. In the event the terms of any such purchase order or similar document conflict with or are additional to this Agreement, this Agreement alone shall apply and shall govern regardless of execution of such document by one or both parties, and Cedexis hereby notifies Client (and, if applicable, the reseller placing an order with Cedexis on Client’s behalf) of Cedexis’ objection to and rejection of such conflicting or additional terms. Furthermore, unless otherwise expressly agreed to in writing by Cedexis, no usage of trade, course of dealings, course of performance, understanding, or any term or condition in any purchase order or other document furnished by Client (or a reseller on Client’s behalf) that in any way modifies, is inconsistent with, is different from, attempts to explain and/or is in addition to this Agreement shall be part of this Agreement, and shall be regarded as null and void and is hereby expressly rejected. Additionally, Cedexis failure to object to any term or condition in any oral or written communication from Client (or Client’s reseller), will not constitute an acceptance thereof or a waiver of any term or condition contained in this Agreement. Without limiting the generality of the foregoing, if the express terms of an Order Form conflict with this Agreement, the terms on the Order Form will prevail, but only with respect to that Order Form. Except as otherwise expressly set forth above, all modifications or amendments to this Agreement must be in writing and signed by both parties, except that subsequent Service renewals can be procured by payment (by either Client or Client’s reseller, as applicable) against an issued invoice, as set forth in Section 8 (Fees and Payment Terms).
16.9 As used in this Agreement, the word “including” means “including but not limited to.”
16.10 No presumption will operate in favor of or against any party as a result of its role in drafting this Agreement.
16.11 This Agreement (including all exhibits attached hereto, and all mutually executed Order Forms, which are incorporated herein by this reference), comprises the entire agreement between Client and Cedexis and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding its subject matter. Nothing in this Agreement, express or implied, is intended to nor shall be construed to confer upon or give to any third party (including any customer of Client) other than the parties hereto, any interest, right, remedy, or other benefit with respect to or in connection with this Agreement.