WHEREAS, Wrench offers an enterprise-grade platform for developing, deploying, and tracking customer information, analytics and analytical strategies across finance platforms; and
WHEREAS, Customer wishes to engage, and Wrench is willing to provide, certain of such services to Customer on the terms and conditions described in this Agreement, in exchange for the fees set forth hereinafter as well as Wrench’s access to certain contact, client, market, and industry data created by or in the possession of Customer.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the sufficiency of which is hereby acknowledge, the Parties agree as follows:
The following terms, when used in this Agreement shall have the following meanings:
“Affiliate” means with respect to a Party, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”): provided, however, that a Disclosing Party’s business plans, strategies, technology, trade secrets, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. In all instances, all Wrench Property (as defined below) is Confidential Information of Wrench. Information is not Confidential Information if it: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.
“Data” means any research, content, analysis, reports, charts, documents, pricing, bid or ask information, purchase, sale, performance, volume, inventory, metrics, product features, underwriting criteria, or other similar data or information relating to common stock, preferred stock, loans, notes, credit, advances, debt instruments, securities, or other financial instruments issued, distributed, or originated by, on behalf of, or relating to Customer, whether pertaining to a single instrument or the aggregate instruments or metrics of Customer, and whether such data or information is provided directly or other electronic means (e.g., Excel spreadsheet, FTP site, .csv file, .pdf report, or other electronic or downloadable media) or via tangible means (e.g., hard copy report, statement, document, or other written media).
“Wrench Market Data” means any aggregate, sector-level, or market-level Data combining or pertaining to two or more customers of Wrench created by or on behalf of Wrench or its Affiliates.
“Wrench Tools” means any algorithm, calculation, model, equation and/or software provided by Wrench to Customer.
“Term” is defined in Section 8.1 below.
2 ACCESS TO PLATFORM; PERFORMANCE OF SERVICES.
2.1 Platform. Wrench hereby grants Customer a non-exclusive right to access and use the commercially available suite of programs, components, functions, screen designs, report formats, and Wrench Tools available from Wrench as a service over the internet (the “Platform”) solely for Customer’s internal business purposes. The Platform shall be used or accessed only by individual employees authorized by Wrench to access the Platform solely using a user identifier and password provided to Customer by Wrench.
2.2 Service Levels. Wrench shall use reasonable efforts consistent with prevailing industry standards to provide the Platform in a manner that minimizes errors and interruptions in accessing the Platform. Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Wrench or by third-party providers, or because of other causes beyond Wrench’s reasonable control, but Wrench shall use reasonable efforts to provide advance notice by email of any scheduled service disruption within Wrench’s control.
2.3 Services. Besides providing to Customer a non-exclusive license to use the Platform and related Wrench Property (as defined below), Wrench shall perform the services set forth on Exhibit A hereto (the “Services”). In the event of a conflict between Exhibit A and this Agreement, the terms of this Agreement shall prevail.
2.4 Reservation of Rights. All ownership rights, title, and interest in and to the Platform, Wrench Tools, Wrench Market Data and Services, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein, the “Wrench Property”) will remain with and belong exclusively to Wrench. Wrench reserves all rights not expressly granted to Customer herein.
2.5 Wrench License Restrictions. Customer’s limited license rights to use the Platform and related Wrench Property are subject to the following restrictions:
(a) Customer shall not transfer, display, publish, download, distribute, sell, resell, lease, sublease, license, sub-license, assign, or otherwise offer for use on a service bureau, outsourced, or value-added basis, or create any derivative works (as that term is defined in 17 USC § 101) from any Wrench Property without the prior written consent of Wrench;
(b) Customer shall have no rights to the Wrench Property and shall not remove or modify any proprietary marking or restrictive legends placed thereon;
(c) All ownership rights, title, and interest in and to the Wrench Property, as such may be added to, modified, upgraded, and/or enhanced from time to time will remain with and belong exclusively to the Wrench; and
d) Customer shall not reverse engineer, decompile, disassemble or otherwise create, attempt to create, or authorize or assist any third party to create a source code version of any Wrench Property. Customer further acknowledges and agrees that, the Wrench Property, especially all Wrench Market Data, constitutes Confidential Information of Wrench.
2.6 No Implied License. Customer acknowledges and agrees that this Agreement in no way shall be construed to provide to Customer, or any third party, any express or implied right or license to access, use, copy or otherwise exploit Wrench Property or any portion thereof (including any intellectual property embodied therein), except as specifically provided herein.
2.7 Data License; Restrictions. Customer hereby grants Wrench a non-exclusive, non-transferable, limited right and sublicense to access and use the Data. Except in the case of Wrench’s express license and right to anonymize and then use the Data as Wrench Market Data, the Data shall be used or accessed only by those individual employees authorized by Wrench, or as otherwise agreed to by the Parties in writing. Wrench’s rights in and to the Data are further subject to the following restrictions:
(a) Except as expressly set forth herein, Wrench shall have no rights to the Data, and shall not remove or modify any proprietary marking or restrictive legends placed thereon, unless such removal is exclusively for Wrench’s internal business purposes, such as the processing and analysis of the Data, or to use the Data as Wrench Market Data.
(b) All ownership rights, title, and interest in and to the Data, as such may be added to, modified, upgraded, and/or enhanced from time to time will remain with and belong exclusively to the Customer.
2.8 Customer Responsibilities. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of Wrench Property and notify Wrench promptly of any such unauthorized access or use; and (b) use Wrench Property only in accordance with the relevant documentation provided directly to Customer by Wrench, as well as applicable laws and regulations.
2.9 Third-Party Data. Third-party research, data and tools may be obtained from companies not affiliated with Wrench, and are provided to Customer for informational purposes only. Wrench does not guarantee the accuracy, completeness, or suitability of such third-party information for any purpose, and makes no warranties with respect to the results to be obtained from its use.
3 FEES; REIMBURSEMENT OF EXPENSES
3.1 Fees. The fees that Customer shall pay to Wrench for the Services and the limited, non-exclusive license to use the Platform and related Wrench Property are Hourly, Monthly Recurring and for use of the platform.
3.2 Payment. Wrench shall, either once per month or at such other time period as mutually agreed upon by the Parties in writing, deliver an invoice to Customer, requesting payment for the Services, use of the Platform and any other deliverables incurred by Client and for the reimbursement of expenses incurred during the immediately preceding billing period. Fees shall be due and payable within ten (10) days from the date that the applicable invoice is sent to Customer. If payment of any invoiced fees (including any reimbursement of expenses) is not made after it becomes due and payable, a late fee shall accrue at the rate of the lesser of two and one half percent (2.5%) per month or the highest legal rate permitted by law.
3.3 Net of Taxes. All amounts payable by Customer to Wrench under any applicable invoice are exclusive of any sales, use and other taxes or duties, however designated, including, without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively, “Taxes”). Customer shall be solely responsible for payment of any Taxes, except for those Taxes based on the income of Wrench. Customer will not withhold any Taxes from any amounts due Wrench.
4 OWNERSHIP, FEEDBACK AND CONFIDENTIALITY
4.1 Customer Ownership Rights. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the Customer’s Confidential Information are retained by Customer. Wrench agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Customer in and to such intellectual property rights.
4.2 Wrench Ownership Rights. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to Wrench Property and Wrench’s Confidential Information are retained by Wrench. Customer agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Wrench or its licensors in and to such intellectual property rights.
4.3 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Customer Feedback”) to Wrench with respect to Wrench Property. Wrench may consider and discuss with Customer all Customer Feedback, but shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Should Wrench determine that it wishes to so proceed, Wrench, upon its discretion, may elect to integrate the new enhancement, feature and/or functionality into its overall product planning process. The Parties agree that such Customer Feedback shall be given voluntarily. Customer hereby grants Wrench a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to: (a) copy, distribute, transmit, display, perform, and create derivative works of the Customer Feedback; and (b) use the Customer Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Customer Feedback and/or any subject matter of the Customer Feedback.
4.4 Nondisclosure and Use Restrictions. Each Party acknowledges that Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Nothing in this Section 4.4 is intended to restrict or otherwise limit the exercise by a Party of the rights and licenses granted to it under this Agreement; provided that such Party uses reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose this Agreement, in whole or in part: (a) to its employees, officers, directors, attorneys, auditors, financial advisors and/or subcontractors who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 4.4, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiment.
5 REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
5.1 Representations and Warranties of Each Party. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation of such Party when signed by both Parties.
5.2 Representations and Warranties of Customer. Customer represents, warrants and covenants to comply with all laws, rules, and regulations in connection with its use of any of Wrench Property. Customer also represents, warrants and covenants that the Data (and Wrench’s use of the Data) will not infringe the intellectual property rights of any third party, nor breach any obligation of confidentiality or right of privacy of a third party.
5.3 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PLATFORM AND RELATED WRENCH PROPERTY ARE PROVIDED ON AN “AS–IS” BASIS AND WRENCH DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL WRENCH HAVE ANY LIABILITY ARISING FROM THE UNAUTHORIZED USE OF WRENCH PROPERTY OR INFORMATION DERIVED THEREFROM. CUSTOMER ACKNOWLEDGES THAT WRENCH DOES NOT WARRANT THAT WRENCH PROPERTY WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES.
6.1 Infringement Defense. Wrench shall indemnify, defend and hold harmless Customer against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) directly or indirectly brought against Customer by any third party arising from or related to the infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by reason of the use of Wrench Property (excluding any third party materials incorporated therein) by Customer as contemplated hereunder. Wrench shall, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Wrench (or Customer if Wrench does not promptly defend any such claim) for such defense, provided, that: (a) Customer shall promptly notify in writing Wrench of such claim ; (b) Wrench shall have the sole and exclusive authority to defend and/or settle any such claim; and (c) Customer reasonably cooperates with Wrench in connection therewith.
6.2 Actions in Response to Potential Infringement. If the use of Wrench Property by Customer has become, or in Wrench’s opinion is likely to become, the subject of any claim of infringement, Wrench may at its option and expense: (a) procure for Customer the right to continue using Wrench Property as set forth hereunder; (b) replace or modify Wrench Property to make it non-infringing so long as Wrench Property has at least equivalent functionality; (c) substitute an equivalent for Wrench Property; or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement, terminate Customer’s access to the Platform (and any related Wrench Property) and/or the performance of any Services thereunder.
6.3 Limitation on Infringement Indemnification.Wrench shall have no liability or obligation under Sections 6.1 and 6.2 with respect to any claim if such claim is caused in whole or in part by: (a) compliance with designs, guidelines, plans or specifications provided by Customer; (b) modification of Wrench Property by any party other than Wrench without Wrench’s express consent; or (c) the combination, operation or use of Wrench Property with other applications, portions of applications, product(s), data or services where Wrench Property would not by itself be infringing.
6.4 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Wrench against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) directly or indirectly brought against Wrench by any third party arising from: (a) the use of Wrench Property in violation of the terms of this Agreement; or (b) any of the circumstances described in Section 6.3.
6.5 THIS SECTION 6 STATES WRENCH’S ENTIRE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S EXCLUSIVE REMEDY (AT LAW OR IN EQUITY), WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR ANY CLAIM OF ANY NATURE RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.
7 LIMITATION OF LIABILITY
7.1 LIMITATIONS ON REMEDY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 HEREOF, WRENCH SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION 7.2, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 7.2 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8 TERM, TERMINATION
8.1 Term. This Agreement will commence as of the Effective Date, and unless earlier terminated in accordance with this Agreement, will remain in effect for the term as stated in the contract, or until one (1) year from the Effective Date (the “Initial Term”) whichever is longer. Thereafter, the term of this Agreement shall automatically be extended for successive renewal periods of one year unless either Party notifies the other Party of its intent to terminate at least thirty (30) days prior to the expiration of the then current term (each, a “Renewal Term” and, together with the Initial Term, the Term”).
8.2 Right to Suspend. Wrench may suspend Customer’s access to any portion of the Wrench Property if Wrench reasonably determines that: (a) Customer is in breach of its payment obligations under this Agreement; (b) there is a threat or attack on the Wrench Property or other event that may create a risk to the Wrench Property, Customer or any other customer of Wrench; (c) Customer’s use of the Wrench Property disrupts or poses a security risk to the Wrench Property or any other Wrench customer; (d) any of the circumstances described in Section 6.3 occurs; or (e) Client is using the Wrench Property for fraudulent or illegal activities (collectively, “Service Suspensions”). Wrench will provide written notice of any Service Suspension to Customer and will provide updates regarding resumption of access to the Wrench Property following any Service Suspension. Customer will be provided with a billing credit for the time of any Service Suspensions, except for Service Suspensions described in Sections 8.2(c) or (d).
8.3 Obligations on Termination. Upon termination of this Agreement or expiration of the Term, all rights granted hereunder and all obligations of Wrench to provide the Platform and the Services shall immediately terminate. Termination of this Agreement or expiration of the Term shall not relieve Customer from paying all fees accruing prior to termination and Customer shall promptly pay such fees upon termination of the Agreement. Sections 3, 4, 5, 6, 7 and 9 shall survive the termination of this Agreement or the expiration of the Term for any reason whatsoever.
8.4 Force Majeure. No Party hereto shall have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any of the following events (each, a “Force Majeure Event”): (a) any fire, explosion, unusually severe weather, natural disaster or act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; (f) any action taken in response to any of the foregoing events by any civil or military authority; or (g) any other event beyond such Party’s control, provided, that, financial inability in and of itself shall not be a Force Majeure Event.
9.1 Non-Solicitation. During the Term and for a period of one (1) year thereafter, Customer shall not, and shall cause each of its Affiliates and each of their respective directors, managers, partners, officers and employees not to, directly or indirectly on behalf of any other person, cause, solicit, induce or encourage any employee of Wrench or any of its Affiliates to leave his or her employment with Wrench or any of its Affiliates or hire, employ or otherwise engage any such individual; provided, that nothing contained in this Section 9.1 shall prohibit Customer or its Affiliates from hiring any such individual in the event that: (a) such individual shall have responded to a general solicitation for employment not otherwise aimed or targeted at employees of Wrench or its Affiliates; or (b) such individual has not been employed by Wrench or any of its Affiliates at any time during the twelve (12) months period preceding the date on which such individual is hired by Customer or one of its Affiliates.
9.2 Compliance with Laws. Each Party shall, at its own expense, be responsible for current and ongoing familiarity with, and shall at all times comply with all applicable laws, treaties, rules, regulations, orders and other requirements relating to this Agreement. Without limiting the generality of the foregoing, Customer shall not transfer, either directly or indirectly, any Wrench Property, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and shall otherwise comply with all other applicable import and export laws, rules and regulations.
9.3 Publicity. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party.
9.4 No Assignment. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent may be withheld at the sole discretion of the non-assigning Party. Notwithstanding the foregoing, Wrench may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with Wrench or that acquires all or substantially all of the assets and business of Wrench by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
9.5 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Any such waiver shall be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and shall not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.6 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute but one and the same instrument.
9.7 Relationship. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
9.8 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision shall be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
9.9 Governing Law. Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Utah without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Utah and of the United States of America located in the State of Utah (the “Utah Courts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Utah Courts and agrees not to plead or claim in any Utah Court that such litigation brought therein has been brought in an inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Utah Courts.
9.10 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (a) delivered personally; (b) sent by read-receipt confirmed email or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses designated by the Parties in writing pursuant to the means of communication set forth in this Section 9.10.
9.11 Entire Agreement. This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties. This Agreement may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten or oral agreements between the parties.
9.12 Headings. The titles, headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.