MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE PRODUCTS AND SERVICES PROVIDED BY BOZBURUN, INC. D/B/A TOOLIO. CUSTOMER ACCEPTS THIS AGREEMENT BY (1) EXECUTING A SUPPLEMENTAL DOCUMENT THAT REFERENCES THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, OR (2) ACCESSING THE TOOLIO WEBSITE TO USE THE PRODUCTS AND SERVICES.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "YOU" or “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS AND SERVICES.
This Agreement was last updated on December 9, 2022. It is effective between the customer executing the Supplemental Document (“You” or “Customer”) and Bozburun, Inc. d/b/a Toolio, a Delaware corporation with a principal business location at 44 Court St #1217 #1019 Brooklyn, NY 11201(“Toolio”) as of the date. You accept this Agreement (the "Effective Date"). In accordance with the applicable Supplemental Documents, the following are the terms and conditions that shall govern Toolio’s provision of the Products and/or Services to Customer.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Capitalized terms not otherwise defined in the first instance of their use shall have the meanings ascribed to them in this Section 1.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the applicable entity. For purposes of this definition, “control” means, direct or indirect, ownership or control of more than fifty percent (50%) of the applicable entity.
“Customer Data” means, (i) all data or information submitted, posted or created by or on behalf of Customer or Users in the course of using the Products and/or Services ; (ii) submitted by, or on behalf of, Customer or Users in connection with the Agreement; and (iii) generated output from Customer or its Users use with the Products and/or Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Products” means the online, web-based application provided by Toolio via the Toolio Website or other designated application service providers as described on the Toolio Website and licensed to Customer in accordance with the applicable Supplemental Documents.
“Services” means services provided in addition to the Products by Toolio or Toolio’s third party service providers in accordance with the applicable Supplemental Document.
"Subscription Term" means the period of time that Customer may use and access the Services beginning on the Effective Date and as set forth in the applicable Order Form.
“Supplemental Document” means an ordering document (either a Statement of Work or an Order Form) for Customer’s purchases of Products and/or Services from Toolio that is executed by both parties hereto and references this Agreement.
“Toolio Website” means the website operated by Toolio at the URLs https://toolio.com and its subdomains, or any successor or affiliated website Toolio designates, through which the Products and Services may be made available to Customer.
“Users” means individuals who are authorized by Customer to use the Services pursuant to this Agreement or as otherwise defined, restricted or limited in a Supplemental Document or amendment to this Agreement, for whom subscriptions to the Services have been procured. Users may include but are not limited to Customers and Customer’s Affiliates’ employees, consultants, contractors and agents.
2. PRODUCTS AND SERVICES
2.2 Supplemental Documents. The parties shall execute a Supplemental Document for any Product(s) to be licensed and/or Service(s) to be purchased by Customer from Toolio hereunder.
2.3 Infrastructure Requirements. Customer agrees that it shall be responsible for the cost of and the providing and maintaining of all telecommunications equipment necessary for its use of the Products and Services, including, but not limited to, the following: computers, internet connectivity, software and other materials at Customer’s location(s) necessary for accessing the Toolio Website.
3. USE OF PRODUCTS
3.1. Toolio’s Responsibilities. Toolio shall provide the Services and make the Products available to Customer pursuant to the terms of the applicable Supplemental Document and this Agreement; provided, however, that Customer acknowledges that the Toolio Website may be unavailable from time to time for maintenance and such unavailability will not be considered a breach of this Agreement. Toolio will use reasonable efforts to give written notice (including by email) to Customer prior to any scheduled service disruption. Toolio shall not materially decrease the functionality of the Services during a Subscription Term, except during a scheduled service disruption as provided herein or in a Supplemental Document. Toolio will implement reasonable measures to assure that the Services will not contain or transmit to Customer any Malicious Code.
3.2. Customer’s Responsibilities. Customer shall be solely responsible for all activities that occur in User accounts and for Users' compliance with this Agreement. In addition, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notify Toolio promptly of any such unauthorized access or use of which Customer becomes aware; and (iii) comply with all applicable local, state, federal and foreign laws in using the Products and Services. Customer shall also provide all assistance reasonably requested by Toolio and shall permit Toolio to access and use its systems, facilities, and materials (including the Customer Data) for purposes of performing Services and/or providing the Products hereunder.
3.3. Restrictions. Customer shall use the Products solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Products available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (vi) attempt to gain unauthorized access to the Products or Toolio’s related systems or networks; (vii) access the Products if Customer is a direct competitor of Toolio, except with Toolio’s prior written consent; or (viii) access the Products for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.4. Security. Toolio agrees (i) it shall maintain information security measures designed to protect Customer Data from unauthorized disclosure or use, and (ii) it shall, upon request, provide Customer with information regarding such security measures upon Customer’s reasonable request and promptly provide Customer with information regarding any failure of such security measures or any security breach resulting in unauthorized access to or use of Customer Data. Customer acknowledges and agrees that Toolio may use one or more third-party providers to host the Products.
3.5. Support. During the Subscription Term, Toolio shall provide assistance to Customer by telephone, e-mail or online chat as set forth in the applicable Order Form. Toolio reserves the right, from time to time, to make modifications to support services (or particular components thereof), provided that such modifications do not materially reduce the support services in effect as of the Effective Date of this Agreement. Toolio agrees to use commercially reasonable efforts to notify Customer of any material modifications to the support services by posting a notice on the Hosted Services. Toolio shall use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer. Toolio shall review all requests for improvements and new functionality, but Toolio shall have no obligation to provide any modifications to the Hosted Service.
4. FEES, PAYMENT & TAXES
4.1. Fees. Customer shall pay all fees specified in all Supplemental Document(s) hereunder. All fees are quoted and payable in United States dollars. Except as otherwise specified herein or in a Supplemental Document, fees are based on Products and/or Services procured, payment obligations are non-cancelable, fees paid are non-refundable, and the Products and/or Services procured cannot be decreased during any Subscription Term.
4.2. Invoicing and Payment. Toolio will invoice Customer for: (i) Products in advance for the applicable Subscription Term; and (ii) Services in accordance with the applicable Supplemental Document. Unless otherwise stated in the Supplemental Document, all charges are due within thirty (30) days from the invoice date.
4.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Toolio’s discretion: (i) late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (ii) all reasonable and documented costs incurred by Toolio in the course of collecting such late payments.
4.4. Suspension of Products and/or Services. If Customer’s account is thirty (30) days or more overdue, in addition to any of Toolio’s other rights or remedies, Toolio reserves the right to suspend the Products and/or Services provided to Customer, without liability to Customer, until such amounts are paid in full.
4.5. Renewal Subscription Term. Except as otherwise provided in the applicable Order Form, fees for any renewal Subscription Term shall be (i) based on the prior Subscription Term for the applicable Services and Users; (ii) subject to up to an eight percent (8%) increase above the applicable pricing in the prior Subscription Term, unless Toolio provides notice of different pricing at least thirty (30) days prior to the applicable renewal Subscription Term; and (iii) charged automatically at the start of each renewal Subscription Term, or if applicable, invoiced approximately thirty (30) days prior to the start of each subsequent Subscription Term. Except as expressly provided in the applicable Supplemental Document, renewal of promotional or one-time priced Subscription Terms will be at Toolio’s applicable list price in effect at the time of the applicable renewal Subscription Term. In no event will the fees for the renewal Subscription Term be lower than the fees for the previous Subscription Term.
4.6. The fees and the term of use for additional Users and other Services procured during an existing Subscription Term will co-terminate with and be prorated through the end date of the Subscription Term for the applicable Services. Pricing for subsequent renewal Order Forms shall be set at then-current Toolio pricing, unless otherwise agreed to by the parties.
4.7. Taxes. Unless otherwise stated in a Supplemental Document, Toolio’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder, excluding taxes based on Toolio’s net income or property. If Toolio has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Toolio with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. INTELLECTUAL PROPERTY
5.1. Toolio Intellectual Property. Toolio and its licensors shall solely and exclusively own the Products, Services, Toolio Website, including the underlying structure, functions, methods of operation, and ideas related thereto, and all documents, code, works of authorship, programs, manuals, tools, user interfaces, deliverables, developments, processes, formulae, data, specifications and inventions provided, created, owned, licensed, developed, authored or invented by Toolio (including its employees and contractors) prior to or independently of the Agreement, as well as enhancements, derivative works and/or modifications to the foregoing created by Toolio in the course of this Agreement and any Supplemental Document; all of such right, title and interest in them shall remain vested with Toolio (collectively, “Toolio Materials”). Except for the limited, express license and access grant provided to Customer pursuant to this Agreement, nothing in this Agreement shall grant to or confer upon Customer expressly or by implication any rights to such Toolio Materials.
5.2. Customer Data. As between Customer and Toolio, all Customer Data is owned solely and exclusively by Customer. Subject to the limitations of this Agreement, Customer hereby grants Toolio a limited, non-exclusive, non-transferable license to use, reproduce, modify, and adapt Customer Data internally solely for the purpose of performing Services and providing Products hereunder. Notwithstanding the foregoing, Toolio may use Customer Data in anonymized aggregated and de-identified form as required by applicable data security laws and in a manner as to not be reasonably linked with Customer (“Generic Data”) solely to improve or in connection with any Products and/or Services. Subject to the foregoing, Customer hereby grants to Toolio a non-exclusive, worldwide, perpetual, fully-paid up license to use, copy, perform, display, distribute, and create derivative works of the Generic Data. Customer agrees that Customer Data does not and will not include, and Customer shall not upload or transmit to Toolio or to the Services, any personally identifiable information or personal data (“Excluded Data”). Customer recognizes and agrees that: (i) Toolio has no liability for any failure to protect Excluded Data; and (ii) Toolio’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required protection for Excluded Data.
5.3. Suggestions. Toolio shall have and is hereby granted a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Products and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer’s or Customer’s Users relating to the Products and/or Services.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Supplemental Document hereunder), the Products and/or Services, the Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief.
6.5. Access to Data. During the term of this Agreement, Customer shall have access to Customer Data. Customer is solely responsible for retrieving any data stored or used with the Products while Customer has access to the Products, and upon the effective date of the termination of the Products, Customer will not have access to the Products. Toolio shall also be permitted to retain Generic Data. Toolio shall make such Customer Data available for download by Customer for thirty (30) days after any expiration or termination of this Agreement; however, Toolio shall have no further obligation to retain any Customer Data after the effective date of termination.
7.1. Indemnification by Toolio. Subject to this Agreement, Toolio shall defend, indemnify and hold Customer, its Affiliates and the officers, directors, employees, contractors, and agents of Customer and its Affiliates harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (collectively, “Claims”) made or brought against Customer by a third party arising out of: (i) alleging that the use of the Products as contemplated hereunder infringes or misappropriates the intellectual property rights of such third party or (ii) resulting from Toolio’s gross negligence or willful misconduct; provided, that Customer: (a) promptly gives written notice of the Claim to Toolio (provided that the failure to provide such notice will not relieve Toolio of its obligations unless such failure prejudices Toolio’s ability to defend the Claim); (b) gives Toolio sole control of the defense and settlement of the Claim (provided that Toolio may not settle or defend any Claim absent Customer’s written consent (not to be unreasonably withheld) unless it unconditionally releases Customer of all liability); and (c) provides to Toolio, at Toolio’s cost, reasonable assistance. Toolio shall have no obligation regarding any claim arising from or relating to, in whole or in part, any of the following: (1) anything provided by Customer or a third party on Customer’s behalf; (2) modification of Products by Customer or a third party on Customer’s behalf; (3) the Products’ use other than in accordance with this Agreement; (4) the combination, operation, or use of the Products with anything not provided by Toolio (provided that such infringement or misappropriation would not have occurred but for such combination); or (5) the distribution, operation, or use of the Products outside Customer and Customer’s Affiliates or for the benefit of any third party.
7.2. Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Toolio, its Affiliates and the officers, directors, employees, contractors and agents of Toolio and its Affiliates harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Toolio by a third party arising out of: (i) Customer’s gross negligence or willful misconduct; and (ii) any allegations that the Customer Data in the original form provided to Toolio infringes or misappropriates the intellectual property rights of a third party; provided, that Toolio (a) promptly gives written notice of the Claim to Customer (provided that he failure to provide such notice will not relieve Customer of its obligations unless such failure prejudices Customer’s ability to defend the Claim); (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim absent Toolio’s written consent (not to be unreasonably withheld) unless it unconditionally releases Toolio of all liability); and (c) provides to Customer, at Customer’s cost, reasonable assistance.
8. WARRANTIES AND DISCLAIMERS
8.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Further, Toolio represents and warrants that (i) Toolio will provide the Products and Services in accordance in all material respects with the applicable Supplemental Document and (ii) Toolio will implement reasonable measures to check the Products for any Malicious Code.
8.2.Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOOLIO AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES (INCLUDING IMPLIED AND STATUTORY WARRANTIES) OTHER THAN THOSE EXPRESSLY PROVIDED IN SECTION 8.1, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, TOOLIO AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PRODUCTS AND/OR SERVICES SHALL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ARE ERROR FREE. TOOLIO DOES NOT PROVIDE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE THEREOF. ANY ESTIMATE REGARDING SCOPE, TIME OF COMPLETION, COSTS, OR OTHER MATTERS WHICH MAY BE PROVIDED BY TOOLIO ORALLY OR IN WRITING (WHETHER IN A SUPPLEMENTAL DOCUMENT OR OTHERWISE) ARE GIVEN USING COMMERCIALLY REASONABLE METHODS OF ESTIMATION AND ARE IN GOOD FAITH, BUT SHALL NOT BE CONSTRUED AS A WARRANTY OR GUARANTEE OF ANY TYPE. TOOLIO DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY DATA (INCLUDING ANY CUSTOMER DATA).
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCLUDING LOSSES ARISING FROM (I) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, (III) A PARTY’S BREACH OF ITS CONFIDENTIALITY AGREEMENT IN SECTION 6, AND (IV) CUSTOMER’S BREACH OF THE RESTRICTIONS IN SECTION 3.3, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID AND PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2. Exclusion of Consequential and Related Damages. CUSTOMER AGREES THAT THE CONSIDERATION WHICH TOOLIO IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY TOOLIO OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. EXCLUDING A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND OR LOSS OF CUSTOMER DATA, REVENUE, PROFITS, OR ANTICIPATED SAVINGS OR ACCURACY OF ANY DATA, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION
10.1. Term of Agreement. Unless otherwise provided in an Order Form, this Agreement shall commence on the Effective Date listed above and shall continue until expiration or termination of this Agreement or Order Forms executed hereunder.
10.2. Subscription Term. Except as specified otherwise in a Supplemental Document, a standard Subscription Term is for a one (1) year Subscription Term commencing on the Effective Date. Customer's subscription to the Services will automatically renew for additional one (1) year periods unless either party notifies the other of its intent not to renew in writing at least fifteen (15) days prior to the expiration of the then-current Subscription Term. In the event that any Subscription Term expires before Customer makes a payment for a renewal Subscription Term, Toolio reserves the right to charge: (a) a proportionate fee for the elapsed time period during which the Subscription Term was expired and (b) a reactivation fee to process the renewal. At the end of the then current Subscription Term, The Services may automatically deactivate and become non-operational, and Customer shall not be entitled to access the Services unless the Subscription Term is renewed.
10.3. Termination for Cause. A party may terminate this Agreement and any Supplemental Document for cause: (i) upon thirty (30) days written notice of a material breach of the Agreement to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Toolio shall refund Customer the pro-rata portion of any prepaid fees covering the remainder of the Subscription Term after the date of termination.
10.4. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Toolio prior to the effective date of termination. Notwithstanding anything to the contrary in this Agreement or the applicable Supplemental Document, if Toolio terminates Customer’s access to the Products and/or Services due to Customer’s breach of any of the applicable terms of this Agreement, Toolio is not obligated to issue a refund or credit for any unused portion of such Services.
10.5. Effect of Termination and Surviving Provisions. If this Agreement and/or the Supplemental Document is terminated, Toolio will cease to provide all Products and Services hereunder for Customer’s account and all licenses and access rights granted to Customer hereunder shall immediately terminate. Accordingly, Customer must immediately cease all access to and use of the Products and Services and the Toolio Website. The following provisions shall survive any termination or expiration of this Agreement: Section 1, and Sections 4 through 11.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Toolio may subcontract the performance of its obligations under this Agreement to a third party without the prior approval of Customer; provided, however, Toolio shall remain responsible for the performance of any such obligations under this Agreement.
11.2. No Third-Party Beneficiaries. Except for the indemnities set out in Section 7 (Indemnification) and solely for purpose of such indemnities, there are no third-party beneficiaries to this Agreement.
11.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
11.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5. Force Majeure. If and to the extent that a party's performance of any of its obligations pursuant to the Agreement (other than its obligation to pay amounts due thereunder) is prevented, hindered or delayed by fire, flood, hurricane, earthquake, other elements of nature or acts of God, acts of war, acts of a public enemy, acts of a nation or any state, territory, province or other political division, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, theft, quarantine restrictions, freight embargoes or any other similar cause in each case beyond the reasonable control and without the fault or negligence of such party (each, a “Force Majeure Event”), then the non-performing, hindered or delayed party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues. The affected party shall take commercially reasonable efforts to mitigate the impacts of such Force Majeure Event, if such mitigation efforts are practicable given the circumstances, and shall resume performance of its obligations when the Force Majeure Event has been remedied.
11.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.7. Attorney Fees. If a party seeks to enforce any of its rights and obligations hereunder by legal proceedings, the prevailing party in such proceedings shall be entitled to recover from the other party reasonable costs and expenses incurred by the prevailing party, in addition to any other award made by the court in which such proceedings are brought.
11.8. Publicity. Unless a party objects in writing, either party may identify the other as a user or customer, as applicable, and may use the other's name and logo in customer or vendor lists, press releases, blog posts, advertisements, and on their respective websites. Without limiting the foregoing, a party may not use the other party’s name, trademark, logo, and other identifying marks for any other purpose without the other party’s prior written consent in each instance.
11.9. Excuse from Performance. Toolio will be excused from failures to perform the Services and providing the Products to the extent that Customer or its agents fail to perform any of its obligations as identified in the applicable Supplemental Document in a timely manner or commit any other act or omission that causes Toolio’s failure to perform the Services or provide the Products. Toolio shall be entitled to be compensated for any additional material costs incurred as a result of any delay or failure to perform on the part of Customer.
11.10. Assignment. Subject to Toolio’s right to subcontract pursuant to Section 11.1, neither party shall assign or otherwise transfer this Agreement or any rights or obligations contained herein without the prior written consent of the other party. Notwithstanding the above, either party may assign its rights and obligations under this Agreement, without the consent of the other party, to an Affiliate or to a successor in interest to all or substantially all of its business or assets that relates to the subject matter of this Agreement.
11.11. Governing Law. This Agreement shall be governed exclusively by the laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the New York County, the State of New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may have to challenge the forum.
11.12. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in connection with this Agreement. Without limiting the foregoing, each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports.
11.13. Entire Agreement. This Agreement, including all Supplemental Documents and appendices thereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement and a Supplemental Document, the descending order of precedence shall be as follows: (i) this Agreement; and (ii) the applicable Supplemental Document. Notwithstanding the foregoing, this Agreement may be modified by specifically referencing the relevant conflicting provision of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or in any other order documentation (excluding duly executed Supplemental Documents) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction.