“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Authorized User” means a User authorized by Customer to manage the Services on behalf of the Customer, which includes managing Third Party Integration;
“Background Technology” means the Services, any technical user documentation for the Services, and all Intellectual Property owned, used, developed, acquired, or otherwise obtained by Epoch, either prior, during or after the Term of this Agreement;
“Customer Data” means all electronic data or information, including Personal Information, submitted by Customer and/or Users to Epoch via the Services;
“Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Personal Information” means information about an identifiable individual made available by Customer or Users to Epoch under this Agreement;
“Privacy Laws” means any applicable laws and regulations of any jurisdiction in respect to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information, including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) and applicable Canadian provincial privacy legislation;
“Proprietary Information" means information of any kind (whether communicated in written form, orally, visually, demonstratively, technically or by any other electronic form or other media, or committed to memory, and whether or not designated, marked, labelled or identified as proprietary) relating to the Agreement that is obtained by Receiving Party from Disclosing Party, including Customer Data and any information concerning business, affairs, operations, properties, assets (including, without limitation, the Software and Services), employees, customers, suppliers, contracts, prospects, liabilities, research, processes, business records, business plans, project lists, methods of operation, and any other documents or materials that is not readily available to the general public.
“Services” means Epoch’s software-as-a-service employee experience and engagement solution, which includes the Software and consists of a software platform that allows Customer and Authorized Users to upload events and engagement programs, set reminders, and track feedback and engagement;
“Software” means source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services;
“Term” has the meaning ascribed to that term in Section 7;
“Third-Party Integration” means a third-party service which Customer may choose to integrate with the Services, including but not limited to Slack and Calendry, in order to access full capabilities of the Services; and
“User” means individual or entity who is authorized by Customer to access the Services, and who has been supplied a user account and password for the Services, including any Authorized User(s).
2.1 Subject to the terms of this Agreement, including the payment of all Fees (defined below), Epoch will provide Customer with access to the Services. For the duration of the Term, Epoch hereby grants to Customer a personal, limited, internal, non-exclusive, non-transferable, revocable license to access and use the Services through the Company’s website and any applicable Third-Party Integration, in accordance with any Third-Party Integration documentation or any documentation made available by Company from time to time, and solely for Customer’s internal business purposes.
2.2 Epoch offers Customers the ability to use Third-Party Integration to enhance their use of the Services. It is Customer’s sole decision to use Third Party Integration in connection with the Services. In no event shall any reference to any Third-Party Integration or third-party product or service be construed as an approval or endorsement by Epoch of that Third-Party Integration or third-party product or service. Epoch is not responsible for the content of any material, third-party product or service available to Customer through Third-Party Integration. Any Third-Party Integration accessed or linked by Customer through the Services is subject to the terms and conditions of those Third-Party Integrations. Customer is solely responsible for determining those terms and conditions and complying with them. Customer hereby release Epoch from all liability and/damages that may arise from Customer’s decision to link Third-Party Integration to their Epoch account, including Users’ use of Third-Party Integration, receipt of services from any such Third-Party Integration, or reliance on the information available or services provided by any Third-Party Integration.
3.1 Epoch will i) not use or modify the Customer Data, or disclose the Customer Data to anyone other than Customer and the applicable User(s) (except for the purposes of performing its obligations or exercising its rights under this Agreement); ii) treat Personal Information in accordance with the Data Protection Agreement in Schedule A below; ii) provide Customer with a dedicated customer experience team; and iii) make the Services available in accordance with the SLA.
3.2 Customer will not, directly or indirectly: i) reverse engineer, decompile, disassemble or otherwise attempt to discover the Software; ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); iii) use the Services for timesharing or service bureau purposes or otherwise use the Services for the benefit of a third party; iv) remove any proprietary notices or labels; interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; v) build a competitive product or service; vi) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Software or Services; vii) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (viii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (ix) use the Services to send or store Malicious Code; (x) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (xi) attempt to gain unauthorized access to the Services or its related systems or networks.
3.3 Customer may only allow Users to access and use the Services and will be solely responsible for Users’ use and management of the Services. Customer shall not, and shall not allow any User, to i) attempt to disable, modify or circumvent any security measures adopted by Epoch, or ii) use the Services in contravention of any applicable local, provincial, state, federal and foreign laws, including Privacy Laws. Customer agrees to promptly notify Epoch upon becoming aware of any unauthorized access or use of the Services.
3.4 Customer Affiliates may use the Services subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with of this Agreement to the full extent as if such Affiliate were a Party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, either Party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect a Party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such Party.
3.5 Customer acknowledges that internet-connected computers and/or mobile devices installed with modern, standards-compliant browser software (“Equipment”) are required to use the Services. Customer is solely responsible for maintaining the security of their own Equipment, accounts, passwords (including but not limited to the credentials Customer or Users use to access the Services) and files. Epoch will not be liable for any loss or damage arising from Customer’s failure to comply with the requirements of this Section 3.
4.1 “Disclosing Party” means a Party that discloses Proprietary Information under this Agreement, and “Receiving Party” means a Party that receives Proprietary Information under this Agreement. The Receiving Party agrees: i) to take reasonable precautions to protect Proprietary Information, including all precautions the Receiving Party employs with respect to its own Proprietary Information, and in no case using less than a reasonable standard of care; ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information; and iii) not to modify, reverse engineer, decompile, create other works from, or disassemble any Proprietary Information without the prior written consent of the Disclosing Party.
4.2 If the Receiving Party is an organization, then the Receiving Party also agrees that, even within Receiving Party, Proprietary Information will be disseminated only to those employees, officers, directors, Subcontractors (defined below), affiliates and agents (“Representatives”) who need to know the Proprietary Information in connection with the Purpose, who are informed of the confidential nature of the Proprietary Information, who are directed to hold the Proprietary Information in the strictest confidence and who agree to act in accordance with this Agreement. Each of the Parties shall take all necessary precautions or measures as may be reasonable in the circumstances to prevent improper use or disclosure of the Proprietary Information by its Representatives and shall be responsible for any breach of this Agreement by any of its Representatives.
4.3 The Disclosing Party agrees that the foregoing shall not apply with respect to any Proprietary Information that the Receiving Party can document (a) is or becomes generally available to the public (through no improper action or inaction by the Receiving Party or any Representatives of the Receiving Party); (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to oppose such disclosure and participate in the proceeding.
5.1 Subject to the limited rights granted to Customer hereunder, Epoch shall own and retain all right, title and interest in and to the Services and Software, Background Technology, any materials, content or technical documentation provided by Epoch to Customer as part of the Services, and any enhancements and/or modifications to the Background Technology, regardless of: (i) whether Epoch contributed any such enhancements and/or modifications; or (ii) whether any such enhancements and/or modifications were made during the Term. Nothing herein shall be construed as constituting a sale of the Services, Software or any portion thereof to Customer. Except as expressly set forth in this Agreement, nothing herein shall be deemed to transfer ownership, right, title or interest in or to any Intellectual Property or any Intellectual Property Rights from Epoch to Customer.
5.2 Customer hereby grants Epoch a non-exclusive license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Services and to meet its obligations under the Agreement. Epoch shall not access Customer or User accounts, including Customer Data, except to respond to service or technical problems or at Customer's request or as necessary for the operation of the Services or billing.
5.3 Epoch shall have the right collect and analyze data (in aggregate and/or de-identified formats) relating to the provision, use and performance of the Services. Customer hereby grants Epoch a non-exclusive, perpetual, royalty-free license to i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Epoch offerings; and ii) disclose such information and data to third parties, solely in aggregate or other de-identified form, in connection with its business.
5.4 Epoch shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Services and/or any other Epoch products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer to Epoch.
6.1 Customer will pay Epoch the then applicable fees described in the Order Form for the Services in accordance with the terms therein (“Fees”). Fees are non-refundable, except as may otherwise be provided in this Agreement. The Fees in an Order Form apply for the Initial Term and any Renewal Term, subject to Epoch’s right to increase the Fees by up to 5% above the previous applicable Fees at such time. Such revised Fees will apply only to a Renewal Term. Unless otherwise stated in an invoice or order form, Fees are due net thirty (30) days from the invoice date. If Customer believes that Epoch has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after receiving the invoice in which the error or problem appeared, in order to dispute the invoice. Inquiries regarding Fees or invoices should be directed to Company’s customer support department.
6.2 Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Epoch's discretion, late charges at the rate of i) 1.0% of the outstanding balance per month (12.67% per annum), or ii) the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.3 Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Epoch’s net income or property. If Epoch has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Epoch with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Epoch shall have the right to use the capabilities of the Services to confirm the number of Users and Admin Users using the Service and Customer’s compliance with this Agreement.
6.5 If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Epoch reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.
7.1 This Agreement shall commence on the Effective Date and will last for the service term specified in the order form (“Initial Service Term”). Upon expiration of the Initial Service Term, this Agreement shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each such renewal a “Renewal Term” and together with Initial Service Term, the “Term”), unless otherwise agreed upon by the Parties in an order form or unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the end of the then-current Term.
7.2 Customer may be granted a trial period for the Services. Details regarding the Fees, duration of trial, and termination of the trial period shall be determined by the Parties and set out on the applicable order form.
7.3 Either Party may Terminate this Agreement for cause upon thirty (30) days’ written notice if i) the other Party materially breaches any of the terms or conditions of this Agreement and such breach has not been cured by the breaching Party at the end of such thirty (30) day notice 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.
7.4 Upon termination of this Agreement, all licenses granted to Customer hereunder shall immediately terminate. Sections 2.2, 3-6, 7.4, and 8.3-12 shall survive termination of this Agreement. Except as provided i) under Section 7.3; or ii) in any applicable order forms, termination of this Agreement shall not relieve Customer of the obligation to pay any Fees accrued or payable to Epoch prior to the effective date of termination and shall not entitle Customer to refunds of any pre-paid Fees.
8.1 Each Party warrants that i) it has the legal power to enter into this Agreement; ii) it shall comply with all applicable foreign, federal, state and local laws, rules and regulations (including but not limited to Privacy Laws); and iii) it has all rights and licenses necessary to perform its obligations hereunder and has the right to grant the licenses contemplated hereunder.
8.2 Epoch warrants that i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; ii) the Services shall perform materially in accordance with the requirements in this Agreement; and iii) it has taken commercially reasonable measures to ensure the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer Data otherwise originating from Customer).
8.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EPOCH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND EPOCH DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 EXCEPT FOR DAMAGES ARISING FROM EITHER PARTY’S WILFUL MISCONDUCT OR FRAUD OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER TO EPOCH HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE LIABILITY.
10.1 Epoch shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Services infringes or misappropriates any Intellectual Property Rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Epoch and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Epoch, (i) Customer shall notify Epoch promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Epoch sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Epoch in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims, or compromise the defense of any such IP Claims or make any admissions in respect thereto, without Epoch’s written consent.
10.2 If i) Epoch becomes aware of an actual or potential IP Claim; or ii) Customer provides Epoch with notice of an actual or potential IP Claim, Epoch may (or in the case of an injunction against Customer, shall, at Epoch’s sole option and determination: I) procure for Customer the right to continue to use the Services; II) replace or modify the Services with equivalent or better functionality so that Customer’s use is no longer infringing; or III) if (I) or (II) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Fees for any periods after the termination of the Services, less any outstanding fees owed by Customer to Epoch.
10.3 The obligations in Sections 10.1 and 10.2 do not extend to i) any IP Claim based upon infringement or alleged infringement of any Intellectual Property Right by the combination of the Services with other products, software or services not provided by Provider; ii) any IP Claim related to any Customer Data; or iii) any IP Claim related to any use or exercise of any other right in respect to the Services outside the scope of the rights granted in this Agreement.
10.4 Customer shall, at its own expense, defend Epoch, its Affiliates and its Representatives (“Epoch Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Provider Indemnitees alleging that the Customer Data, or Customer's use of the Services in violation of this Agreement, infringes the Intellectual Property Rights, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Epoch Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Provider Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Epoch shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Epoch shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Epoch shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Epoch shall not settle any Customer Claims, or compromise the defense of any such Customer Claims or make any admissions in respect thereto, without Customer’s written consent.
11.1 This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Notwithstanding the generality of the foregoing, if Customer’s principal location is in the United States, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the federal laws of the United States applicable therein.
11.2 The provincial and federal courts located in Toronto, Ontario, Canada shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party also 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. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.
11.3 The Parties shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with this Agreement. If the Parties cannot resolve the dispute within ten (10) business days, the Parties will attempt to settle it in good faith by mediation. To initiate the mediation a Party must give notice in writing to the other Party requesting a mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Toronto, Ontario and the language of the mediation will be English. The mediation shall be governed by and construed and take effect in accordance with the substantive law of the Province of Ontario. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the Parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Toronto, Ontario before one (1) arbitrator. In the event the Parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each Party shall bear its own legal costs in connection with a mediation and/or arbitration under this provision.
12.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the rest of this Agreement will otherwise remain in full force and effect.
12.2 This Agreement is not assignable, transferable or sublicensable by either Party to a successor in interest, without consent by the other Party. Notwithstanding the foregoing, Epoch may assign this Agreement without consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Epoch’s business, shares or assets.
12.3 This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any order form or addendum hereto, the terms of such order form or addendum shall prevail to the extent of the conflict or inconsistency.
12.4 Customer acknowledges and agrees that Epoch may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Epoch in performing its obligations under this Agreement. Subcontractors shall remain under the direction and control of Epoch. Epoch shall, in the performance of its obligations under this Agreement, use reasonable efforts to comply with all Customer policies, procedures and rules that have been communicated to Epoch in writing.
12.5 All waivers and modifications hereof must be in writing signed by both Parties, except as otherwise provided herein. 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.
12.6 No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Customer nor Epoch has any authority of any kind to bind the other Party in any respect whatsoever. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
12.7 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be addressed to the Party’s signatory of this Agreement unless otherwise designated in an order form.
12.8 Either Party may refer to the other Party in its lists of customers or partners or its marketing materials and website, including by using the Party’s logo and name in relation to such reference (“Publicity Rights”). Neither Party may issue press releases or other public statements relating to this Agreement without the other Party's prior written consent.
12.9 This Agreement may be executed by facsimile or electronic mail and in counterparts, which taken together shall form one legal instrument.
12.10 Neither Party shall be responsible for its failure to perform its obligations under this Agreement due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, health pandemics, strikes, labour problems, or computer, telecommunications, internet service provider or hosting facility failures or delays not within a Party’s possession or reasonable control, provided that such Party gives the other Party prompt written notice and the reason for failing to meet its Agreement obligations.