PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

Our Customer Terms of Service is a contract that governs our customers’ use of the BuildAndRun services. Upon receiving your confirmation e-mail, you agree to these terms, and you agree to the online reference to these terms.

Our confirmation e-mail is the BuildAndRun-approved form, created following your purchase of our products or services. It contains all of the details about your purchase, including your subscription term, the products purchased, and your fees.

1. DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” or “Customer Terms of Service” means these terms and all materials referred or linked to in here, including the Order Confirmation.

“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information includes all information concerning the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering, and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

“Contact Information” means the name, email address, phone number, online username(s), telephone number, and similar information submitted or uploaded by you to the Subscription Service.

“Consulting Services” means the professional services provided to you by us if so agreed in writing, which may include training services, integration, or other consulting services.

“Customer Data” means all information that you submit, process, or collect via the Subscription Service. Customer Data does not include BuildAndRun Content.

“Usage Restrictions” means the restrictions in using the Subscription Service.

“BuildAndRun Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services).

“Order (Confirmation)” means the BuildAndRun -approved confirmation e-mail, by which you agree to subscribe to the Subscription Service and may purchase Consulting Services.

“Subscription Fee” means the amount you pay for the Subscription Service.

“Subscription Service” means all of our web-based applications, tools, and platforms that you have subscribed to under an Order Confirmation.

“Subscription Term” means the initial term of your subscription to the applicable Subscription
Service, as specified on your Order Confirmation, and each automatic, subsequent renewal term of 12 months.

“Third-Party Products” means products and professional services, upon which the Subscription Service may be contingent and/or may be impacted, that are provided by third parties, such as Google Map.

“Users” means your employees, representatives, consultants, contractors, or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

“BuildAndRun”, “we”, “us” or “our” means the applicable contracting entity as specified in the Order Confirmation.

“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order as the customer.

2. USE OF SERVICES

2.1 Access. During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. You must ensure that all access, use, and receipt by your Users are subject to and in compliance with this Agreement. We might provide some or all elements of the Subscription Service through third-party service providers, subject to such third-party service provider’s terms and conditions and you agree that these conditions apply to you as well. You may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under this Order; provided that, all such access, use, and receipt by your Affiliate’s Users are subject to and in compliance with the Agreement (including but not limited to Usage Restrictions) and you will at all times remain liable for your Affiliates’ compliance with the Agreement.

BuildAndRun hereby grants to Customer, during the Subscription Term, a non-exclusive, non-assignable, non-transferable (unless otherwise agreed in writing) right to use the Subscription Service, subject to the terms of this Agreement and solely for internal purposes within Customer’s own business. The use is subject to payment of the Subscription Fee and the fulfillment of all requirements stipulated in this Agreement.

2.2 Additional Features. You may subscribe to additional features of the Subscription Service by requesting an additional Order or activating the additional features from within your BuildAndRun account (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your BuildAndRun account.

2.3 Limits & Usage Restrictions. The limits and Usage Restrictions that apply to you will be specified in your Order, this Agreement, within the user environment or on our website.

2.4 Modifications. We modify the Subscription Service from time to time and at our sole discretion, including by adding or deleting features and functions.

2.5 Prohibited and Unauthorized Use. You will not use the Subscription Service in any way that is unlawful or prohibited by this Agreement.

You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is also not designed to comply with industry-specific regulations.

You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account.

2.6 Trial license. There is a possibility for a trial license prior to the initial Subscription Term, as determined by BuildAndRun in the Order Confirmation. During the trial period, no costs will be charged. At the end of the trial period, if the first invoice has been paid, the Subscription starts for a initial period of 12 months and will be automatically renewed in accordance with this Agreement, unless terminated.

After the last day of the trial as indicated in the Order Confirmation, if you have not paid the first invoice, BuildAndRun shall no longer be available, and the Agreement shall automatically terminate.

3. FEES

3.1 Customer shall pay the Subscription Fee for the Subscription Service per month or per year, as specified in the Order Confirmation and subsequent invoice(s).

The Subscription Fee will remain fixed during the term of your subscription unless: (i) you exceed your Usage Restrictions or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, or (iv) otherwise agreed to in your Order. However, BuildAndRun retains the right to change the prices (and therefore, the Subscription Fee) for the Subscription Service at any time, provided that BuildAndRun notifies Customer no later than thirty (30) days prior to the change of the applicable fees.

3.2. All applicable fees are at all times due and payable in advance by bank transfer throughout the Subscription Term.

3.3 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You may not withhold or deduct any applicable taxes levied on you from the applicable fees.

4. TERM AND TERMINATION

4.1 Term and Renewal. Your initial Subscription Term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for one year.

4.2 Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal, upon at least thirty days (30) prior written notice.

4.3 Early Cancellation excluded. You may not early terminate your subscription for convenience (without cause).

4.4 Termination for Cause. Either party may terminate this Agreement for cause (in Dutch: “ontbinden”), as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach (in Dutch: “toerekenbare tekortkoming”) if such breach remains uncured at the expiration of the such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our technology, and/or software including the Subscription Services, our prospects, or our customers.

We may terminate this Agreement for cause with immediate effect if you infringe upon our intellectual property rights and/or if you breach your confidentiality obligations.

This Agreement may not otherwise be terminated by you prior to the end of the Subscription Term.

4.5 Suspension

4.5.1 Suspension for Prohibited Acts.

We may suspend any User’s access to any or all Subscription Services without notice for:
(i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, and/or,
(ii) use of the Subscription Service in a way that violates a third party right or is otherwise unlawful against a third party, including but not limited to any intellectual property right.

We may, without notice, review and delete any Customer Data that we determine in good faith violate these terms, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data.

4.5.2 Suspension for Non-Payment.

We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably, with substantiated grounds, and in good faith, and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

4.5.3 Suspension for Present Harm.

If your use of the Subscription Service:
(i) is being subjected to denial-of-service attacks or other disruptive activity,
(ii) is creating a security vulnerability for the Subscription Service or others,
(iii) is consuming excessive bandwidth, or
(iv) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.

We will make commercially reasonable efforts to (a) limit the suspension to the affected portion of the Subscription Service and (b) promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined in this Agreement.

4.6 Effect of Termination or Expiration.

You will continue to be subject to this Agreement for as long as you have access to a BuildAndRun account.

Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and BuildAndRun Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering the use of the Subscription Service after termination, as a sole and exclusive remedy to you only. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable. We will not be held to undo any paid fees as a consequence of any (early) termination.
We will retain Customer Data for a maximum of 14 days after the termination is effective, after which it is permanently deleted. During this grace period of 14 days, on your written request to us only, a copy of the Customer Data can be received in an ITD-supplied format and standard encoding, however, on an “as is, as available” basis only.

5. CUSTOMER DATA

5.1 Customer’s Proprietary Rights. You own and retain all rights to the Customer Data. This Agreement does not grant us any ownership rights to Customer Data. You grant permission to us and our licensors to use the Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. In your use of the Subscription Services, we are not responsible and, thus, liable for Customer Data.

5.2 Limits on BuildAndRun. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law and this Agreement.

5.3 Data Practices and Machine Learning.

5.3.1 Usage Data. We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement. We may aggregate and anonymize this information and share it with third parties provided that we do not include any Customer Data or identify Users.

5.3.2 Machine Learning. We may, as permitted by the Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.

6. INTELLECTUAL PROPERTY

6.1 This is an agreement for access to and use of the Subscription Service. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, modify or create derivative works based on the BuildAndRun Content, the Subscription Service, or the Consulting Services (including any deliverables as a result of these services) in whole or in part, by any means, except as expressly authorized in writing by us and/or as allowed under overriding, mandatory laws. You may not use any of our trademarks without our prior, written permission.

6.2 Except as expressly permitted by mandatory applicable law, you may not (i) make the Subscription Service available to any person other than authorized users, (ii) use or access the Subscription Service to provide service bureau, time-sharing, or other computer hosting services to third parties, (iii) remove, modify or obscure any copyright, trademark or other proprietary notices used to provide the Subscription Service, (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the Subscription Service, or (v) access the Subscription Service in order to build a similar product or competitive product.

6.3 We reserve the right to make such audits at Customer’s as is necessary to ascertain that your use of the Subscription Service accord with the provisions of this Agreement and you shall be obliged to assist us in the preparation of such audit and shall grant us access to all relevant computer equipment and systems.

6.4 We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.

7. CONFIDENTIALITY

7.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party
(except those third-party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services and except for your BuildAndRun Solutions Partner bound by confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.

8. PUBLICITY

You grant us the right to add your name and company logo to our customer list and website.

9. INDEMNIFICATION

You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of
(a) our use of the Customer Data in providing the Subscription Services,
(b) unauthorized or illegal use of the Subscription Service by you or your Affiliates,
(c) your or your Affiliates’ noncompliance with or breach of this Agreement,
(d) your or your Affiliates’ use of Third-Party Products, or
(e) the unauthorized use of the Subscription Service by any other person using your User Information.

We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

10. DISCLAIMERS; LIMITATION OF LIABILITY

10.1 Performance Warranty. Subject to the limitations of liability and to any force majeure event, we state that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service.

In the event of non-conformance with this conformity statement, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement, for this reason, we will promptly refund any prepaid but unused fees covering the use of the Subscription Service after termination, as a sole and exclusive remedy to you only in such event.

We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.

THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.

10.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE ‘PROTECTION OF CUSTOMER DATA’ SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, CUSTOMER CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING
INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, CUSTOMER CONTENT, AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

10.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER AN ACTION IS IN CONTRACT OR TORT REGARDLESS OF THE THEORY OF LIABILITY.

10.4 Limitation of Liability. OUR TOTAL, CUMULATIVE, AGGREGATE LIABILITY WILL PER CONTRACT YEAR AT ALL TIMES BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID FOR THE SUBSCRIPTION SERVICE IN THAT CONTRACT YEAR.

10.5 Third-Party Products. WE AND OUR AFFILIATES DISCLAIM ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE, WHETHER OR NOT COMBINED WITH THE SUBSCRIPTION SERVICES. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

10.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

11. MISCELLANEOUS

11.1 Amendment; No Waiver. We may modify any part or all of the Agreement. The revised version will become effective and binding the next business day after it is published. We will provide you with notice of this revision by email.

If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund, as a sole and exclusive remedy to you only, any prepaid but unused fees covering the use of the Subscription Service after termination.

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

11.2 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; the act of God; electrical, internet, or
telecommunication outage that is not caused by the obligated party; government restrictions; or another event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

11.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

11.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

11.5 Compliance with Laws. This Agreement will be governed by Dutch law and the court of Amsterdam will be the competent court. The United Nations Convention on Contracts for the International Sale of Goods is not applicable.

We will comply with all Dutch laws (where applicable) in our provision of the Subscription Service, the Consulting Services, and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.

You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws.

You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit the use of the Subscription Service or Consulting Services by prohibited countries or individuals.

11.6. Severability. If any part of this Agreement or an Order Confirmation is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

11.7 Notices. To BuildAndRun: Notice will be sent to the contact address set forth in the Confirmation Order and will be deemed delivered as of the date of actual receipt.

To you: your mail address as provided in our BuildAndRun Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all your account information current.

11.8 Entire Agreement. This Agreement (including each Order) is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral, or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

11.9 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any BuildAndRun affiliate or in the event of a merger, reorganization, sale of all or substantially all of our assets, change of control, or operation of law.

11.10 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third-party person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

11.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.

11.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates’ compliance with the terms of this Agreement.

11.13 Survival. The following sections will survive the expiration or termination of this
Agreement: ‘Definitions’, ‘Fees’, ‘Prohibited and Unauthorized Use’,
‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’,
‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of
Termination or Expiration’, ‘Intellectual Property’, ‘Customer’s Proprietary Rights’,
‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’,
‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.

11.14 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.