OPENDATE MASTER AGREEMENT

This Opendate MASTER AGREEMENT is a master agreement and consists of the general terms and conditions set forth herein, and the terms set forth in an applicable Order Form (defined below) or an applicable Statement of Work (defined below) (collectively, the “Agreement”).  Unless expressly set forth in an Order Form or Statement of Work, the terms and conditions set forth in this Opendate MASTER AGREEMENT shall control in the event of a conflict between the terms and conditions herein, and any Order Form or Statement of Work.  

The Agreement is effective as of the date set forth on an applicable Order Form (“Effective Date”), by and between Opendate (“Opendate”), and the client party as set forth on an applicable Order Form (“Client”).  Client may include any Client affiliates, partners, or franchisees, as indicated on the applicable Order Form or Statement of Work.  From time to time in the Agreement, Client and Opendate shall be referred to collectively as, the “Parties” and each individually as, a “Party.”

There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.  

SECTION 1 - Definitions

Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Agreement.

  1. “Benchmark Data” means statistical, system, usage, and configuration data regarding the Client’s compliance with the Agreement and Client’s usage of the Software Services, including, but not limited to, user engagement statistics or remote application performance measurement, and provided that: (i) does not specifically identify Client or Client’s customers; and, (ii) does not consist of any of Client’s Confidential Information, provided, however, that Client shall not consider statistical, aggregate data part of its Confidential Information;.
  2. “Client Content” means any logos, videos, multimedia, reports, information, files, documents, data or other content that Client, its employees, personnel, agents, or end users, share with Opendate.
  1. “Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (i) the terms and conditions of the Agreement; (ii) customer lists, the names of customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (iii) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (iv) information about costs, profits, markets and sales; (v) plans for future development and new product concepts; (vi) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (vii) any data or information stored in the Software Services.
  1. “Deliverable” means all patentable subject matter, copyrightable subject matter, copyrights, trademarks, trade secrets, know-how, ideas, suggestions, discoveries, designs, processes, computer products, software (both object code and source code), works of authorship, algorithms, formulas, methods, programming, techniques, flowcharts, reports, and all other inventions or developments created, by Opendate, specifically for Client pursuant to Professional Services, and as set explicitly identified on an Order Form or Statement of Work. 
  1. “Order Form” means the order form document that is executed by both parties and is subject to, governed by, and incorporates by reference, this Opendate MASTER AGREEMENT, and sets forth the Software Services and Professional Services Opendate shall provide to Client.  
  1. “Professional Services” means the professional services provided by Opendate to Client under a Statement of Work or the Order Form that describes the professional services to be provided by Opendate, which may include, but is not limited to, any implementation, data conversion, set-up, consulting, training, interface, and advisory services.  Professional Services includes Support Services.  
  1. “Residuals” means any ideas, concepts, or know-how developed or acquired by Opendate during the performance of this Agreement to the extent obtained and retained by Opendate (and its personnel) as impression and general learning, and does not include Client’s Confidential Information delivered hereunder.  
  1. “Software Services” means the software services as set forth on the Order Form or a Statement of Work, and provided by Opendate, running on one or more computer servers maintained by Opendate or a third party on behalf of Opendate, and made available to Client over the Internet.
  1. “Statement of Work” means a document executed by an authorized representative of each party that sets forth the Professional Services and/or Support Services, a sample of which is attached hereto as Exhibit A.
  1. “Support Services” means the support and maintenance services provided by Opendate to Client under a Statement of Work or the Order Form that describes the support and maintenance services to be provided by Opendate, which may include, but is not limited to, any troubleshooting, and help-desk services.
  1. “Third Party Product” means all materials, hardware or software owned by a third party.

SECTION 2 - Software Services 

  1. License Grant. Provided that Client pays all the required fees under the Agreement and complies with all other terms of the Agreement, Opendate hereby grants to Client a non-exclusive, terminable, non-transferable right and license to access and use the Software Services pursuant to the Agreement, in and under Opendate’s intellectual property rights. Client shall not use or otherwise access the Software Services in a manner that exceeds Client’s authorized use as set forth in the Agreement.
  1. Restrictions. Client shall not use the Software Services beyond the scope of the rights granted in the Agreement. Client shall be solely liable for its users’ and customers’ access to the Software Services and any misuse of the Software Services by any of Client’s workforce personnel. Client shall not directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Software Services.  Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Software Services.
  1. Service Level Agreement. During the Term, Opendate shall provide the Software Services in accordance with the service levels as further specified in the Service Level Agreement attached hereto as Exhibit C. Notwithstanding the foregoing, Opendate may suspend Client’s, or Client’s workforce personnel’s, use of the Software Services in the event that Opendate reasonably concludes that Client’s (or Client’s workforce personnel’s) use of the Software Services is causing immediate, material, and ongoing harm to Opendate or others.
  1. Security.  Opendate hereby agrees to have in place, a formal written information security program that provides safeguards for the protection of Client’s Confidential Information and Client Data, from loss, theft, and disclosure to unauthorized persons.  Opendate agrees to maintain commercially reasonable information security and privacy standards, as applicable to the Software Services.

SECTION 3 - Client’s Obligations

  1. Client shall be responsible for obtaining and purchasing all equipment, Internet access services, and Third Party Product(s), modifying its network, and doing all other things necessary in order to use the Software Services, and the Professional Services. Opendate will make reasonable effort to identify and disclose additional costs as part of Order Form(s) or Statement(s) of Work.
  1. Client will provide commercially reasonable cooperation with Opendate to assist Opendate in provision of the Software Services, and the Professional Services. 
  1. Opendate shall authorize access to and assign unique passwords and user names to Client’s end users of the Software Services (“Client Accounts”). Client shall be responsible for any activity occurring through Client’s personnel’s Client Accounts, including unauthorized activity. 
  1. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software Services and shall promptly notify Opendate in the event of Client knows or would have been known after a reasonable inquiry, of any unauthorized access or use of the Software Services and any loss or theft or unauthorized use of any of the Client Accounts. 
  1. Client shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and industry standards (e.g. PCI-DSS), applicable to Client’s use of the Software Services, and the Professional Services, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
  1. Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software Services or any software, documentation or data related to the Software Services; modify, translate, or create derivative works based on the Software Services (except to the extent expressly permitted by Opendate or authorized within the Software Services); use the Software Services for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or in any manner that violates Opendate’s intellectual property rights.

SECTION 4 - Professional Services

All Professional Services rendered by Opendate (if any) shall be governed by the terms and conditions of the Agreement and the applicable Statement of Work or Order Form.

  1. Order Forms. The performance of Professional Services by Opendate will be in accordance with this Agreement and one or more Order Forms or Statements of Work. Each Order Form or Statement of Work shall be signed by authorized representatives of Opendate and Client, and shall identify the Professional Services to be provided by Opendate to Client under that Order Form or Statement of Work, the Fees to be paid by Client to Opendate under that Order Form or Statement of Work, and other terms and conditions applicable to the Professional Services under that Order Form or Statement of Work, including, for example, any limitations or scheduled milestones. Any modification to this Agreement or an Order Form or Statement of Work must be in writing and executed by an authorized representative of each Party. 
  1. Performance of Professional Services. Professional Services may, at the discretion of Opendate, be performed at: (i) Client’s offices, Opendate’s offices or elsewhere; and (ii) the times designated by Opendate unless otherwise specified in an Order Form or Statement of Work. Client shall provide Opendate with copies of all materials in Client’s possession that Opendate may reasonably request to assist Opendate in rendering Professional Services hereunder. In addition to all other remedies it has available to it at law or in equity, Opendate may suspend the provision of Professional Services during any period when Client has failed to timely pay Opendate any amount due under the Agreement and such failure continues for a period of ten (10) or more days following Client’s receipt of notice or a reminder invoice from Opendate concerning such nonpayment. 
  1. Support Services: Client shall be entitled to receive Support Services as set forth on the applicable Order Form or Statement of Work. Client shall have the right to contact the Opendate’s support organization in accordance with the procedures specified in the Order Form (or an applicable Statement of Work).  Client shall have the right, but shall not be obligated, to renew Support Services pursuant to an Order Form. In the event of any lapse in Support Services coverage, Opendate shall allow Client to renew Support Services without any additional charge other than the payment of the applicable fees mutually agreed upon by the parties for the renewal Support Services period.
  1. Client Delay and Changes. Opendate shall not be responsible for any delays in the performance of the Professional Services caused by Client. For any Professional Services for which Client’s participation is contemplated, Client and Opendate shall agree upon the dates to perform such Professional Services.  Opendate will have no obligation to provide Professional Services other than those specified in any Statement of Work.  Client may request additional Professional Services by a separate Statement of Work describing the additional Professional Services to be provided. Unless the parties agree to other rates set forth in a mutually executed Statement of Work, Client will pay for additional work and/or work that falls outside of the scope of a Statement of Work at an hourly rate of $150/hour.  Additional work shall not be performed without Client’s prior approval in writing.

SECTION 5 - Payment Terms

  1. Fees. Client shall pay the fees as set forth on the Order Form, including any: (i) fees for the Professional Services (the “Professional Services Fees”); (ii) fees for the Software Services (the “Subscription Fees”); (ii) fees to receive Support Services (the “Support Services Fees”) (collectively, the “Fee(s)”).  Notwithstanding the foregoing, the Parties may agree in writing to renew the Agreement for longer periods at other mutually agreed upon rates. Unless set forth on the applicable Order Form, Client shall commence paying the Subscription and Support Services Fees for the Initial Term or each Renewal Term, and will pay all Professional Services Fees, within ten (10) days after the start of such term.
  1. Payments for Professional Services. Opendate will invoice Client for Professional Services on a time and materials basis.  Client shall pay undisputed invoices, or the undisputed portion of any disputed invoice, within thirty (30) days of the invoice date. In order to dispute an invoice or an amount on an invoice, Client must provide written notice to Opendate of such dispute prior to the applicable due date for the payment of such fee and such dispute must be reasonable and in good faith.  On such invoices, Opendate shall charge Client for reasonable travel, lodging and meal expenses, and any other reasonable expenses incurred on behalf of Client in rendering the Professional Services.  
  1. Taxes. Client shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on the Agreement, except taxes based on Opendate’s income. Opendate reserves the right to suspend Client’s access and/or use of the Software Services and to cease providing Professional Services for any accounts for which any payment of fees is due and unpaid, provided, however, that Opendate provides Client a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Client. Client also shall pay to Opendate all reasonable expenses incurred by Opendate in connection with exercising any of its rights under the Agreement or applicable law with respect to the collection of any payments due Opendate (excluding with respect to amounts reasonably disputed by Client in good faith), including reasonable attorneys’ fees, court costs, and collection agency fees.

SECTION 6 - Intellectual Property Rights.

  1. Proprietary Rights. Client acknowledges and agrees that Opendate retains sole and exclusive ownership of all right, title, and interest in and to: (i) any Professional Services; and (ii) the Software Services, including any update, modification, improvement, enhancement, or configuration made to the Software Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration. 
  1. Deliverable Rights. Each Deliverable, as it is developed, that is copyrightable shall be deemed “work made for hire,” (as such, term is defined under the United States copyright laws) and made in the course of the Professional Services rendered hereunder. If, for any reason, any of the foregoing may not be deemed a “work for hire” and for all other Deliverables (including all other intellectual property rights therein), Opendate hereby irrevocably and unconditionally grants and assigns to Client, in perpetuity, now and in the future, all rights, title and interest whatsoever throughout the world in and to all Deliverables and all intellectual property rights embodied therein, practiced thereby or used therein.  Subject to the foregoing, Opendate shall have a nonexclusive, nontransferable license to use the Deliverable solely to support its business operations.  
  1. Residuals. Client acknowledges and agrees that Client does not have or obtain any rights in any Residuals.  Notwithstanding any provision of this Agreement to the contrary, Opendate shall be free to use for any purpose, any Residuals resulting from performance hereunder.
  1. Client Content. Client acknowledges and agrees that in connection with this Agreement, Opendate may process and/or receive Client Content. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client, its employees, personnel, agents, or end users, upload, submit, or store Client Content in connection with this Agreement, Client grants Opendate a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Client Content to perform its obligations under this Agreement. Opendate is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under the Agreement on behalf of Opendate). Without limiting Client’s rights and remedies under the Agreement, Client acknowledges that Client Content and information regarding Client’s account will be processed by Opendate and stored and processed using online hosting services selected by Opendate. Client represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Client Content to grant Opendate the rights granted under this Section 6(d).  Notwithstanding anything to the contrary in the Agreement, Client authorizes and agrees that Opendate may collect Benchmark Data and such Benchmark Data shall be the property of Opendate. Opendate shall have the right to retain, use, distribute, sell, and otherwise exploit such Benchmark Data.
  1. Feedback. Opendate encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Opendate’s services and related resources. Opendate shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Software Services or any new programs, upgrades, modifications or enhancements developed by Opendate in connection with rendering the Software Services to Client, even when refinements and improvements result from Client’s feedback or request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Opendate by virtue of the Agreement or otherwise, Client grants to Opendate a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the Software Services) without restriction.

Section 7 - Warranties

Opendate represents, warrants and covenants that: (a) it has the full corporate right, power and authority to enter into the Agreement; (b) the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound; (c) it shall use commercially reasonable efforts to prevent unauthorized access to, and maintain and assure the strict confidentiality of, all Client Content; (d) it shall provide the Professional Services in a good and workmanlike, professional manner. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7 AND IN ANY STATEMENT OF WORK, Opendate DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  CLIENT ACKNOWLEDGES AND AGREES THAT ALL Opendate TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7 AND IN ANY STATEMENT OF WORK, Opendate MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT Opendate SOFTWARE SERVICES OR PROFESSIONAL SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT THE Opendate SOFTWARE SERVICES OR PROFESSIONAL SERVICES WILL BE ACCURATE, COMPLETE, TIMELY, UNINTERRUPTED OR ERROR-FREE. Opendate DOES NOT GUARANTEE THAT ANY SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. Opendate WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT’S PROPERTIES, THIRD-PARTY PRODUCTS NOT PROVIDED BY Opendate UNDER THIS AGREEMENT, THIRD-PARTY CONTENT NOT PROVIDED BY Opendate UNDER THIS AGREEMENT, OR NON-Opendate SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CLIENT IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON Opendate SOFTWARE SERVICES OR PROFESSIONAL SERVICES OR Opendate’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

Opendate will have no responsibility for the quality, completeness, proper licensure, or workmanship of any item or action furnished by Client. Unless otherwise agreed in writing, Client will be solely responsible for obtaining all necessary rights in Client Furnished Equipment or Third Party Products delivered by Client (but not by Opendate). Further, Opendate will have no responsibility for the adequacy or performance of: (i) the Client Furnished Equipment, or any software, hardware, or other materials Opendate did not provide under this Agreement, or (ii) any products or services provided by any third party except for any third party software, hardware, or other materials Opendate directly provides under this Agreement.  Opendate DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ALL THIRD PARTY PRODUCTS.  THE MANUFACTURERS OR DISTRIBUTORS OF THE THIRD PARTY PRODUCT(S) MAY PROVIDE WARRANTIES OF THEIR PRODUCTS THAT WILL EXTEND TO CLIENT, BUT IT IS CLIENT’S RESPONSIBILITY TO ACQUIRE AND IMPLEMENT SUCH WARRANTIES.   

SECTION 8 - Indemnification. 

a) Client shall indemnify and defend Opendate, at Client’s own expense, against any suit or proceeding brought against Opendate by a third party arising from or related to: 

  • Client’s violation of any law; or 
  • An allegation that the Client Content or Client Furnished Equipment or Opendate’s use thereof in accordance with the Agreement violates any law or regulation or infringes third party intellectual property rights or privacy rights. 

b) Opendate shall indemnify and defend Client, at Opendate’s own expense, against any claim, suit or proceeding brought against Client arising from or related to: 

  • Opendate’s violation of any law; 
  • An allegation that the Deliverables or Professional Services provided by Opendate under this Agreement violates any law or regulation or infringes third party intellectual property rights or privacy rights; or 
  • An allegation that if true, would constitute a breach of Opendate’s representation, warranty, or covenant provided in Section 7. (each, a “Claim”)

c) Opendate’s indemnification obligations under Section 8(b) shall not apply to the extent such Claim arises from: (i) Client’s or a third-party’s modification of the Deliverables without Opendate’s prior approval; (ii) Opendate’s adherence to Client’s instructions; or (iii) the Client Furnished Equipment.

d) To qualify for such defense and payment, Client must: (a) give Opendate prompt written notice of any such Claim; (b) allow Opendate to solely control the defense and all related settlement negotiations for any such Claim; and (c) fully cooperate with Opendate in such defense and settlement negotiations.

SECTION 9 - Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THE AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY THE CLIENT UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. 

SECTION 10 - Confidentiality

  1. Non-Disclosure. Each Party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other Party to any third party, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under the Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.
  1. Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or become known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation.

SECTION 11 - Term and Termination

  1. Term. The initial term of the Agreement shall be as set forth on the Order Form (the “Initial Term”). Thereafter, the term of the Agreement shall renew as set forth on the Order Form (each, a “Renewal Term”, and collectively with the Initial Term, the “Term”), unless one Party provides written notice to the other Party at least sixty (60) days in advance of the end of the then-existing term that it does not wish to renew the Agreement.
  1. Termination for Cause. In the event that Client or Opendate breaches any material provision of the Agreement and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching Party may terminate the Agreement immediately by written notice to the other Party. In the event that Client or Opendate (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors; or, (v) ceases to do business in the ordinary course, the other Party may terminate the Agreement immediately by notice in writing. All notices required by this Section shall be in accordance with the notice requirements.
  1. Rights upon Termination. Client acknowledges that in the event of a termination or expiration of this Agreement for any reason (including any under Section 12(b)): (i) the rights granted by Opendate to Client will cease immediately; (ii) Opendate does not retain and shall not be responsible for any damage to or loss of Client Content or other data; (iii) Client shall pay Opendate for all Software Services (including any Professional Services) provided to Client up to and including the date of termination; and (iv) Client shall not be entitled to any refund of the Fees (or portions thereof) unless set forth on the applicable Order Form or Statement of Work. 

SECTION 12 - General

  1. Law, Jurisdiction, and Venue. The Agreement shall be governed and construed according to the laws of the State of Indiana. The Parties agree that the exclusive jurisdiction or any lawsuit related to or arising under the Agreement shall be in the Circuit Court for Hamilton County, Indiana or the United States District Court for the Southern District of Indiana.
  1. Assignment. Client may not assign any of its rights or delegate any of its duties under the Agreement without the prior written consent of Opendate. Any unauthorized assignment or delegation will be null and void. 
  2. Notices. Any notice either Party desires to give the other Party hereunder shall be in writing. All notices shall be given by delivery to the Parties at their physical or email addresses set forth on the Order Form unless such addresses are changed by written notice.
  1. Independent Parties. The Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
  1. Force Majeure. Neither Party shall be liable in damages or have the right to terminate the Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, widespread Internet outage(s), wars, insurrections and/or any other cause beyond the control of the Party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the Party who was to benefit from the performance of such act shall have the right to terminate the Agreement by giving written notice, according to the Agreement. 
  1. General. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. The Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. The Agreement may not be modified except by written agreement signed duly authorized representatives of both Parties. The Agreement shall not be construed against any Party by reason of its preparation. If one or more of the provisions contained in the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of the Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.
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