WHEREAS, Fig Learning Inc is in the business of providing small and mid-sized organizations with licensed access to a learning management platform (the “Platform”), a catalog of off-the-shelf eLearning content (the “Content Library”), and managed learning services of the same, as more particularly described in the attached Order Form(s) (the “Learning Services” and, collectively, with the Platform and Content Library, the “Services”); and
WHEREAS, the Client desires to use, and the Company desires to provide to the Client, such Services on the terms and conditions hereinafter set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and the Client hereby agree as follows:
During the subscription term set forth in the Order Form (the “Subscription Term”), the Company will provide the Client and its Users with remote access to the Services. During the Subscription Term, and subject to compliance with this Agreement, the Company grants to the Client a worldwide, non-exclusive, non-transferable, non-assignable (except as provided herein), and limited right and license to allow Users to remotely access the Services for the Client’s own internal business purpose. “Users” means individuals who are authorized by the Client to use the Services, for whom subscriptions to the Services have been purchased under an Order Form, and who have been supplied user identifications and passwords by the Client. Users may include the Client’s employees, consultants, contractors, agents, or third parties with which the Client transacts business.
2.1 Provision of Services. As integral aspects of the Services to be provided hereunder, the Company will undertake each of the responsibilities detailed on the Order Form attached hereto, including the provision of access and use of, and the administration of, the Platform, and such other Services as the Parties shall reasonably agree related thereto.
2.2 Client Cooperation. The Client agrees to work diligently with the Company in performing all tasks reasonably necessary to enable the Company to provide the Services in accordance with this Agreement.
2.3 Maintenance. The Client acknowledges that certain maintenance activities regarding the Services may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, etc. In most instances, the Services’ infrastructure is designed to support updates without the need to interrupt the Services. Where such maintenance activities are not reasonably anticipated to materially impact the Client’s use of the Services, the Company will have no obligation to provide notice to the Client regarding such maintenance activities. The Company will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
2.4 Third-Party Licenses. The Services may include, incorporate, utilize or work with other software, tools, applications, content, data or other materials, including related documentation, that are owned by persons other than the Company and that are provided to the Client on license terms that are in addition to and/or different from those contained in this Agreement, including but not limited to HubSpot’s license terms (“Third-Party Licenses”). The Client agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by the Client or any of its authorized users of any Third-Party License shall be considered a breach of this Agreement as well.
The Client will not, and will not knowingly permit others, in using the Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or the Company; (ii) publish, ship, distribute or disseminate any harmful, infringing, fraudulent, tortious, or unlawful material or information (including any unsolicited commercial communications), or that encourages the same; (iii) knowingly transmit or upload any material through the Platform containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing the Company’s, or any other person’s or entity’s, network, computer system, or other equipment; (iv) attempt to gain unauthorized access to the Platform, other clients’ (of the Company) computer systems or networks using the Services through any means; (v) copy, modify or create derivative works or improvements of the Services, or reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (vi) bypass or breach any security device or protection used by the Services, or access or use the Services other than through the use of the then valid access credentials; (vii) remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property rights notices from any Services; or (viii) access or use the Services for purposes of the development of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage. The Company has no obligation to monitor the Client’s use of the Services; however, the Company reserves the right, at all times, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms and conditions of this MSA or any Order Form, and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
4.1 For Company. Except for the limited right to access and use the Services under this Agreement and the applicable Order Form during the Term, to the extent that it owns or controls the same, the Company shall retain any and all rights, title, and interest that it has in the Services. The Client will not assert or cause any other Party (including, without limitation, any User) to assert any right, title, or interest in or to the Services or other portion of the Company’s Intellectual Property Rights (as defined herein). This Agreement is not a sale and except as set forth in this Agreement, does not give the Client any rights of ownership in, or related to, the Services, the Platform, or the Intellectual Property Rights owned by the Company. “Intellectual Property Rights” means in connection with intellectual property, any and all rights in, to and under patents or patentable subject matter (whether or not registered or registrable), trade secret rights (including proprietary information that does not rise to the level of trade secret), copyrights or copyrightable subject matter (whether or not registered or registrable), trademarks, service marks, trade dress and similar rights of any type under the laws of any governmental authority worldwide, including, without limitation, all applications, divisional applications, continuations, registrations, and derivative works relating to the foregoing.
4.2 For Client.
(a) To the extent that it owns or controls the same, the Client shall retain the rights, title, and interest in any content that it or its Users specifically uploads to or creates in connection with the use of Services, including such Intellectual Property Rights (collectively, the “Client Content”). The Client shall be solely and exclusively responsible for Client Content that it utilizes in conjunction with its use of the Services and the Company has no responsibility for verifying or maintaining the same (all of which shall be sole responsibility of the Client). Accordingly, the Client is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Client Content that it uploads, posts, publishes, transmits, or otherwise makes available through the use of the Services (whether such content is utilized by/for the Client itself, by its Users, or by/for its customers or third parties), and (ii) no portion of the Client Content is unlawful or infringes upon the rights of any third party. At no time shall the Company be responsible for the accuracy, availability, correctness, timeliness, or any other quality of or concerning Client Content that the Client uploads to, utilizes, or that is transmitted through, the Services, or otherwise provides to the Company. Further, the Company shall have the right, in its sole discretion, to restrict, limit, or reject the posting, publication, use, storage, or transmission of any Client Content via the Services and to remove any Client Content that has previously been uploaded or transmitted, if the Company reasonably believes that such Client Content or the Client’s use thereof is in violation of the terms of this MSA or the Law. The Company is not responsible for any changes, additions, or deletions to Client Content made by the Client, or its Users.
(b) The Client hereby grants to the Company a worldwide, royalty-free license, during the subscription Term, to use, reproduce, distribute, modify, adapt, and otherwise exploit Client Content, but only for the limited purposes of providing the Services to the Client pursuant to the terms of the Agreement.
4.3 For Third-Party Content. In addition, it is expressly acknowledged, understood, and agreed by the Client that certain third parties own (or may own) the Intellectual Property Rights in the Services, including the Platform and certain content that is provided in connection with the Services (collectively, the “Third-Party Content”). Such may be provided to the Client on license terms that are in addition to and/or different from those contained in this Agreement (the “Third-Party Licenses”). The Client agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by the Client or any of its Users of any Third-Party License shall be considered a breach of this Agreement as well. All Intellectual Property Rights in the Services and other such Third-Party Content shall remain exclusively with the owner thereof, and the Client shall acquire no rights in the same other than its limited license to access and use the same, as set forth in Section 3 hereto, in connection with its receipt of the Services under this Agreement. For the avoidance of doubt, the Client expressly agrees that it will not copy, reproduce, sell or otherwise distribute any Platform or other Third-Party Content in any manner that is violative of Section 3 of this Agreement or otherwise outside the scope of its rights to access and use the Services.
4.4 Feedback. If the Client provides the Company with any feedback or suggestions about the Services or the Company’s business operations (the “Feedback”), the Company may use the Feedback without obligation to the Client, and the Client irrevocably assigns to the Company all right, title, and interest in and to the Feedback.
5.1 Services Fees. For so long as Services are provided by the Company pursuant to this Agreement, the Client shall pay to the Company the fees (collectively the “Service Fees”) contained and on the schedule set forth in the Order Form.
5.2 Payment Schedule; Late Payments. Unless otherwise provided in the Order, all Service fees shall be due and payable within thirty (15) days of the issuance of the invoice therefore. If payment by the Client is not timely received by the Company on any invoice which is not reasonably in dispute, the Company reserves the right, upon notice, to suspend the delivery of the Services, until such payments are duly received. In addition, late payments on invoices not reasonably in dispute shall accrue interest daily following the due date at the lesser of one percent (1.0%) per month or the maximum interest allowed by applicable law. The Client shall also pay the Company’s costs and expenses, including reasonable attorney’s fees, incurred in collection of any delinquent amounts.
5.3 Payment Disputes. The Client agrees to notify the Company within fifteen (15) days after receipt of an invoice (the “Dispute Period”) if it believes, in good faith, that there is a discrepancy in the amount of Service Fees or any other amounts invoiced by the Company. The Parties will endeavor in good faith to resolve any dispute within fifteen (15) days of the date of notice of such dispute. The Client agrees that it will pay all amounts not subject to the dispute hereunder. If the Client does not provide the Company with notice of dispute during the Dispute Period, all Service Fees and other amounts shall be deemed accepted by the Client.
5.4 Taxes. The Service Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). The Client is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form. If the Company has the legal obligation to pay or collect Taxes for which the Client is responsible under this Section 5.4, including for Service Fees previously invoiced, the Company will invoice the Client and the Client will pay that amount (unless the Client provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority). The Company is solely responsible for taxes assessable against the Company based on its income, property, and employees.
5.5 Payment Procedures. The Client will make all payments hereunder in US Dollars ($) ACH Bank Transfer, or other such method that may be specified by the Company from time to time. The Client will make payments to the address or account specified in the applicable Order Form, or such other address or account as is specified by the Company, in writing, from time to time.
6.1 MSA Term. This Agreement will commence on its Effective Date and will remain in full force and effect for so long as any individual Order Form remains in effect and for six months thereafter (the “Term”).
6.2 Subscription Term. Each Order Form shall commence on the Subscription Start Date and shall continue in effect for the duration of the Subscription Term, as set forth in the corresponding Order Form, unless earlier terminated in accordance with this Agreement (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term, that Order Form shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
6.3 Agreement Termination. This Agreement may be terminated as follows:
(a) By either Party if the other Party commits a material breach of this Agreement and such breach (i) is incapable of cure, or (ii) is capable of cure but remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;
(b) Either Party may terminate this Agreement if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws; or
(c) The Company may terminate this Agreement upon thirty (30) days’ notice in the event of any documented verbal abuse or threatening language directed at the Company or any employee of the Company by the Client or any of its representatives.
6.4 Post termination Obligations. Upon any expiration or termination of this Agreement: (i) the Company will immediately terminate the Services and the Client will immediately cease all use of the same; (ii) the Client shall pay the Company all Service Fees owed for all Services provided by the Company as of the effective date of termination (and for any applicable tail period); (iii) the Company shall immediately destroy or return to the Client all Confidential Information, tools, instruments, and documents delivered to or used by the Company in connection with its performance of the Services hereunder; and (iv) the Parties shall reasonably cooperate with each other in winding-down their relationship.
6.5 Survival. Upon the expiration or termination of this Agreement, the provisions that are intended to survive shall so survive, including but not limited to, ownership, limitations of liability, confidentiality and indemnification.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
7.2 Company Representations and Warranties. The Company represents and warrants that: (a) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) it has all rights, licenses, consents, and authorizations necessary to grant the rights and licenses granted in this Agreement; and (c) the Platform will operate substantially in conformity with general industry standards under normal use and circumstances. The Client’s sole and exclusive remedy and the Company’s sole obligation for a breach of the warranties in this Section will be the correction or re-performance of the nonconforming Service by the Company. If, after reasonable efforts, neither remedy is commercially available, the Company may cancel this Agreement and refund to the Client a pro-rata portion of the Service Fees (i.e., all Services Fees that have been paid by the Client from the date of notice by the Client of such breach).
7.3 Client Representations and Warranties. The Client represents and warrants that: (a) the Client owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of Client Content that is placed on, transmitted via, or submitted to the Services; and (b) the provision and use of the Client Content as contemplated by this Agreement and the Services does not and will not violate any agreement to which the Client is a Party or any Law or regulation to which the Client is subject.
7.4 Warranty Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 7.2 AND 7.3, NEITHER THE COMPANY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, OR GUARANTEES TO THE CLIENT, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO THE CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY THIRD PARTY-OWNED SERVICES) WILL BE TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, PLATFORM, SYSTEMS, OR CONTENT PROVIDED BY THE CLIENT, OR THAT THE SERVICES FUNCTIONALITY WILL MEET THE CLIENT’S REQUIREMENTS.
(a) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NO MATTER HOW CAUSED OR THE THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE, THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR A) ANY INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, OR OTHER INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, OR ACCURACY OF RESULTS, OR B) ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL.
(b) EACH PARTY AGREES THAT A PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID OR OWED BY THE CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT) (THE “GENERAL LIABILITY CAP”).
(c) NOTWITHSTANDING THE ABOVE, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY PURSUANT TO THIS SECTION 8 WILL NOT, IN THE AGGREGATE AND TOGETHER WITH SUCH PARTY’S OTHER LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE GENERAL LIABILITY CAP FOR DAMAGES ARISING AS A RESULT OF: (I) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; (II) FRAUDULENT MISREPRESENTATION BY A PARTY; (III) BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; AND/OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.
9.1 Company Indemnification.
(a) The Company will defend, indemnify, and hold harmless the Client and its respective directors, officers, employees, representatives, and agents (collectively, the “Client Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, or settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a third party claim (collectively, “Third-Party Claims”) alleging (i) unlawful, or fraudulent misconduct by the Company or its agents; (ii) a claim that the Services or Client’s use thereof infringes or violates any Intellectual Property Rights of a third party; or (iii) a breach of its confidentiality obligations under this Agreement.
(b) In addition to the Company’s obligations under Section 9.1(a), if any Services provided by the Company hereunder is held infringing or to violate any third-party’s rights, then the Company shall, at its sole expense, either: (i) procure for the Client the right to continue receiving and/or using the Services; or (b) replace or modify the Services so that it is non-infringing or non-violative of the third-party’s rights, but maintains substantially the same functionality and characteristics.
9.2 Client Indemnification. The Client will defend, indemnify, and hold harmless the Company and its respective managers, directors, officers, employees, representatives, and agents (the “Company Indemnified Parties”) from and against any and all third-party claims: (i) for gross negligence or willful, unlawful, or fraudulent misconduct of the Client or its agents; (ii) resulting from a breach by the Client or its agents of its confidentiality obligations under this Agreement or Section 10; or (iii) resulting from any Client Content or Client marks, or Client’s use of the Services in violation of Section 3 of this Agreement, which infringes a third-party’s Intellectual Property Rights, violates a third-party’s contract or other rights, or violates applicable law.
9.3 Indemnification Procedures. As a condition to a Party’s obligations under Sections 9.1 or 9.2, the Party being indemnified (the “Indemnified Party”) will provide the Party providing the indemnification (the “Indemnifying Party”) with: (a) prompt written notice of the Third-Party Claim (provided that the failure to provide such notice will not relieve a Party of its obligations unless such failure prejudices its ability to defend the Claim); (b) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (c) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Third-Party Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
During this Agreement, each Party may have access to information that is considered confidential and proprietary by the other Party. This information may include, but is not limited to, Client Content, technology, know-how, procedures, processes, protocols, specifications, strategic plans, designs, systems, software object code and source code, documentation, sales and marketing plans, results of testing, client information, financial information, product information, proposed business arrangements, methods of operation and compilations of data (“Confidential Information”). Each Party may use Confidential Information only for the purposes of fulfilling its obligations under this Agreement. Each Party shall maintain the confidentiality of Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either Party take less than reasonable precautions to prevent the unauthorized disclosure or use of Confidential Information. Upon request, each Party shall return all Confidential Information and shall not use Confidential Information for its own, or any third party’s benefit. The provisions of this Section 10 shall survive the expiration or termination of this Agreement for a period of two (2) years, or, in the case of any Confidential Information that is classified as a trade secret under applicable law, for so long as such Confidential Information remains confidential.
(b) Notwithstanding the foregoing, to the extent the Company processes the Client’s Personal Data protected by Data Protection Laws as a Data Processor on the Client’s behalf (all as defined in the DPA), the Client and the Company shall be subject to and comply with the Fig Learning Data Processing Addendum (the “DPA”), which is incorporated into and forms an integral part of this Agreement. The DPA sets out the Company’s obligations with respect to data protection and security when processing the Client’s Personal Data on the Client’s behalf in connection with the Services.
12.1 Nature of Relationship. The Company is an independent contractor and not an employee, agent, joint-venture, or partner of the Client. The Company has no authority to create any obligations for the Client, is not entitled to any benefits of Client employees, and is responsible for its own costs and legal responsibilities of doing business, including insurance, taxes, workers compensation, equal opportunity compliance, immigration requirements, and employment benefits.
12.2 Publicity. The Company may use any Client names, logos, trademarks, service marks or other indicia or trade origin, or refer to the Client directly or indirectly in any marketing materials, advertising, client lists, media release, public announcement or public disclosure relating to this Agreement or its subject matter, without obtaining the Client’s prior express written consent prior to such use, unless the same shall be specifically objected to by the Client, in writing, in which case, any such use shall cease unless / until the Client gives its express permission otherwise, which permission, if requested, shall not be unreasonably withheld, conditioned or delayed.
12.3 Binding Agreement. This Agreement shall be binding upon the Parties and represents the entire agreement between the Parties with respect to the subject matter hereof. No other agreement (whether written or oral), statement, or promise made by any party, or by any employee, officer, or agent of any party regarding the business relationship between the Parties, that is not contained in this Agreement shall be binding or valid, unless such agreement shall be in writing and signed by the parties hereto after the execution of this Agreement.
12.4 Force Majeure. If either Party is prevented from completing performance of any or all of its obligations under this Agreement by any cause or causes beyond its reasonable control, including but not limited to acts of God, acts or omissions of any government or any rules, regulations, or orders of any governmental authority or any officer, department, agency, or instrument thereof, fire, storm, earthquake, accident, public health emergency, acts of the public enemy, war, rebellion, Internet brownout, Internet virus attack, insurrection, riot, invasion, strikes, or lockouts, then it shall be excused from further performance upon notice to the other Party, stating the reason for the non-performance.
12.5 Notices. All notices required to be given in writing shall be delivered by mail to the, courier, hand-delivery or electronic mail to the such addresses set forth on the signature page hereto, and shall be effective upon receipt, provided that the sender shall have the duty of demonstrating receipt.
12.6 Waivers; Severability.
(a) Any waiver of a Party’s right or remedy related to this Agreement must be in writing, signed by that Party to be effective and no waiver shall be implied from a failure of either Party to exercise a right or remedy.
(b) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law.
(a) Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior express written consent, which shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment without such written consent shall be void.
(b) Notwithstanding the foregoing, either Party may assign this Agreement without the other Party’s prior written consent, in whole, but not in part: (i) to one or more affiliates who are, objectively, capable of fulfilling such assigning Party’s obligations hereunder, provided that each such affiliate agrees to be bound by this Agreement; and (ii) as reasonably necessary in connection with any merger, acquisition, sale of assets or other corporate restructuring. Subject to the provisions of this Section 12.7, this Agreement shall be binding upon and will insure to the benefit of the Parties and their respective successors and assigns.
12.8 Dispute Resolution. If there is any dispute or controversy among the Parties arising out of or relating to this Agreement, the Parties hereby expressly agree that they shall attempt, in good faith, to first resolve any such dispute through guided mediation and consultation. If any such mediation shall fail to resolve such dispute, then any such dispute or controversy shall be arbitrated in accordance with proceedings under JAMS rules (or other rules as agreed by all Parties to such dispute), and such arbitration will be the exclusive dispute resolution method under this Agreement. The decision and award determined by such arbitration will be final and binding upon all Parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agreement will be borne by the Party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one Party, the Parties will share the total costs in proportion to their respective amounts of liability so determined.
12.9 Governing Law; Jurisdiction. The construction and interpretation of this Agreement shall at all times and in all respects be governed by and construed according to the laws of the State of Delaware, without regard to any conflict of law provisions thereof.
12.10 JURY WAIVER. FOR THEIR MUTUAL BENEFIT, EACH OF THE PARTIES HEREBY KNOWINGLY AND EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT.
12.11 Counterparts; Electronic Execution. This Agreement may be signed in one or more counterparts, each of which will be deemed to be an original as against any Party whose signature appears thereon and all of which together constitute one and the same instrument. An electronic signature will have the same legally binding effect as an original signature.
12.12 Definitions. Terms which are used, but not otherwise defined herein, shall have the meanings ascribed to them in the Order Form, or the relevant Schedule attached hereto.