Racemi Services Terms and Conditions -

7 November 2013
Category: Legal
7 November 2013, Comments: Comments Off

RACEMI SERVICE TERMS AND CONDITIONS

RACEMI MIGRATION SERVICES TERMS AND CONDITIONS (“TERMS”).

PLEASE CAREFULLY READ THE FOLLOWING TERMS REGARDING THE PROVISION OF SERVICES BY RACEMI AND THE USE OF AND/OR ACCESS TO CERTAIN RACEMI PRODUCTS.

THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN THE BUSINESS ENTITY IDENTIFIED IN THE REGISTRATION INFORMATION (“YOU” OR “COMPANY”) AND RACEMI, INC. (“RACEMI”). BY SUBMITTING THE REGISTRATION INFORMATION, ACCESSING AND/OR USING THE RACEMI SYSTEMS OR SERVICES AT ANY TIME, OR OTHERWISE PROVIDING RACEMI WITH ACCESS TO COMPANY’S CREDENTIALS (AS DEFINED HEREIN) OR SOURCE SERVER ENVIRONMENT (AS DEFINED HEREIN), YOU ARE AGREEING TO BE BOUND BY THESE TERMS.  IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF COMPANY, AS YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND COMPANY TO THESE TERMS.

YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS OF THESE TERMS.

 

1.  SERVICES.

a.  Services.  Subject to these Terms, Racemi and its service providers will provide certain data migration services (the “Services”) for Company to capture Images (as defined herein) of Company’s server environment on the International Business Machines Corp. (“IBM”) SCE Cloud Computing Instance designated source server environment (“Source Server Environment”) as identified by Company and deploy those Images as a newly created server instance in the designated IBM SoftLayer cloud environment (the “Target Server Environment”). By accepting these Terms, Company grants Racemi permission to migrate all eligible Company Images to the Target Server Environment as designated by Company.  For purposes of these Terms, “Image” means a computer file based structure containing server operating systems, application software, data, and associated network storage configurations.  Company acknowledges and agrees that Racemi shall have no obligation to provide Services for any Images that do not meet the Specifications as provided under Section 3 below or that are otherwise not supported within the Target Server Environment.

Company further acknowledges and agrees that the Services do not include any debugging or modification of code or programming languages for any Images.  Installation and migration of non-licensed purchased applications or purchased applications for which media is not available will not be supported in the performance of Services.

b.  Acceptance.  Following completion of the Services (identified by completion of migration), Racemi will notify Company that the migration phase has been completed.  Company is responsible for verifying and validating that each Image is deployed in the Target Server Environment.  Following completion of the Services, Company will provide Racemi with a written notice of validation and acceptance of the Services.  This validation and acceptance shall be provided via email to Racemi.  Should Company fail to provide the notice of validation and acceptance within a reasonable period of time following notification by Racemi of the completion of Services, the Services shall be deemed validated and accepted.  “Successful Deployment” of an Image means: (i) successful transfer and installation of captured Image from storage to the Target Server Environment; (ii) successful boot of the deployed Image on the Target Server environment; and (iii) successful login to the Target Server Environment and the ability to run commands. A transaction will be considered a “successful deployment” even through the existing applications and/or services on the deployed server image may not function as expected by the user on the Target Server Environment.

c.  Company Acknowledgements.  Company acknowledges and agrees that:

i.  Company is solely responsible for decommissioning / deleting of Images or Server Instances running within the Source Server Environment after validation and acceptance of the Services.  Company is solely responsibility for the termination, deletion, or removal of such server instances that have been migrated by Racemi.  Racemi is not responsible for charges or fees incurred by Company for storage of Images at the Source Server Environment.

ii.  Racemi is not liable for cloud provider fees incurred due to Company error, including but limited to, incorrect entry of numbers, incorrect selection of user interface settings, failure to terminate cloud server instances, failure to remove Images from storage, and/or incorrect selection of cloud services.

2.  AUTHORIZATIONS. Company acknowledges and agrees that Racemi (and its service providers) may use certain Racemi software programs, technology and hosted services (“Racemi Systems”) and third party applications and tools to perform the Services.  Company further acknowledges and agrees that Racemi (and its service providers) may install or use one or more agents or tools on the Source Server Environment and Target Server Environment in connection with the provision of Services.

a.  Account Registration.  In order to be eligible to receive the Services under these Terms, Company shall contemporaneously with execution of these terms, register for an account with Racemi for the Cloud Path SaaS Services (“Company Cloud Path Account”).  Registration for and use of the Company Cloud Path Account is subject to the terms and conditions available at [https://cloudpath4ibm.racemi.com/], which are hereby incorporated by reference. Company shall further establish a valid account with SoftLayer for the Target Server Environment (“Company SoftLayer Account”).  Company shall provide to Racemi all specifications, information and data required by Racemi and shall cooperate with Racemi in the process of assimilating the information and data necessary to confirm that the Racemi Systems and Company’s Source Server Environment and Target Server Environment are configured to enable the migration of Images through the Racemi Systems.

b.  Applications and Tools.  Company hereby authorizes Racemi (and its service providers) to install, or upon the request of Racemi, Company shall install, the capture agent and such other discovery and application mapping tools, as applicable, on the Source Server Environment to enable Racemi (and its service providers) to provide the Services, including post-migration validation.

c.  Credentials.  Company shall provide to Racemi  the information, data, passwords, usernames, PINs, other log-in information, materials and other content to enable remote access and root / administrative access to Company’s Cloud Path Account, Company’s SoftLayer Account, and Company’s existing account on the Source Server Environment (collectively, the “Credentials”).   By submitting the Credentials to Racemi, Company hereby grants to Racemi (and its service providers) the right and license to, and hereby expressly authorized Racemi (and its service providers) to use those Credentials for the purpose of gaining root administrative access to Company’s Cloud Path Account, Company’s SoftLayer Account, and Company’s existing account on the Source Server Environment into order to perform the Services. By submitting the Credentials to Racemi, Company represents that Company is entitled to submit those Credentials to Racemi for use for this purpose.  Company expressly authorizes Racemi (and its service providers) to use and store its Credentials and to access Company’s Cloud Path Account, the Source Server Environment and Target Server Environment, which may be maintained by identified third parties, on Company’s behalf as Company’s agent.  Racemi (and its service providers) will submit information including Credentials that Company provides to log into Cloud Path Account and to access the Source Server Environment and Target Server Environment. Company hereby authorizes and permits Racemi (and its service providers) to use and store information submitted by Company to Racemi (such as Credentials) to accomplish the foregoing and to configure the Services so that it is compatible for the delivery of the Services.  Racemi shall maintain the Credentials as confidential information of Company and protect such Credentials with at least the standard of care and discretion it employs with similar information of its own, but in no event less than reasonable care, and shall not disclose or otherwise disseminate the Credentials, except in connection with the performance of the Services. Following completion of Services, Customer must promptly change all passwords for access to Company’s Cloud Path Account, Company’s SoftLayer Account and new servers created in the Company’s SoftLayer Account, and Company’s existing account on the Source Server Environment and any other passwords that were provided for completion of any stage of this project.

d.  Data; Storage and Retention.  Racemi is entitled to rely upon (i) the information provided by Company in connection with such registration; and (ii) written instructions and approvals submitted by Company regarding access to and use of all Company Data (as defined below).  Company hereby authorizes Racemi to store, on behalf of Company, Images of Company on a temporary basis in the Racemi application repository with a third party service provider, as may be necessary in connection with the delivery of Services.  Company shall provide an API key to access or interface with Company’s service provider for data storage services to store Images on behalf of the Company.  All Company Data received by Racemi in connection with Company’s use of the Racemi Systems shall be stored and retained by Racemi for the period of time determined by Racemi to be appropriate for such Company Data for the performance of Services or until Company requests in writing that Racemi delete such Company Data, subject to applicable law.  For purposes of these Terms, “Company Data” means information, data or items of Company provided to Racemi as a result of the relationship established pursuant to these Terms, including Images.

 

3.  COMPANY OBLIGATIONS.

a.  General Obligations.  In order to enable Racemi (and its service providers) to perform the Services, Company will: (i) provide sufficient, qualified, knowledgeable personnel capable of assisting in rendering the Services and making timely decisions necessary to allow Racemi (and its service providers) to perform the Services; (ii) without limiting the terms of Section 2, provide Racemi (and its service providers) with reasonable access to Company’s facilities, equipment and other resources as reasonably requested by Racemi; (iii) perform such other duties and tasks as set forth in these Terms; and (iv) set up Company’s equipment and network infrastructure in accordance with the network, security, equipment, and infrastructure settings and requirements as provided by Racemi for the Target Server Environment (the “Specifications”).  Company is solely responsible for and will ensure: (x) compliance with all applicable data protection and privacy protection requirements regarding Company’s Images migrated as part of the Services and (y) recovery of any and all of Company’s data deleted by Company.

b.  Security; Back-up and Recovery.  Company acknowledges and agrees that Company is solely responsible for the physical, logical and technical security, back-up, archival and recovery procedures, and safeguards for the Images, Company Data, and the Company servers, software, connectivity, and equipment operated, maintained or provided by Company and associated data contained therein.  Company shall ensure that it has implemented back-up, archival and recovery procedures adequate to prevent loss or destruction of any data or any portion of Company Data and each Image and to prevent any business interruption or business loss of Company due to use of any Services or any malfunction of the Racemi Systems.  Company acknowledges that the ability of the Services to migrate Images is based on the integrity of Company Data, and the Racemi Systems do not verify the accuracy of information or the format of any Images received by Racemi.  Racemi has and shall have no liability to Company or any third party for any breach of security or any loss or destruction of any data or any portion of an Image or for any business interruption or business loss, regardless of the cause.  Racemi is not responsible for the security or regulatory compliance of data contained in Images captured and/or provisioned by the Services.  Company is responsible for reviewing its own licensing agreements and IBM’s cloud vendor licensing policies.

c.  Images.  Company represents and warrants that the capture, transfer and deployment of each Image, including, without limitation, all data and third party materials therein, is (i) authorized and permitted under the applicable law of the territory in which the Services are provided, and (ii) does not and will not violate, infringe upon or misappropriate the intellectual property rights or other personal or proprietary rights of any person or entity or violate the terms of any agreement of Company any third party or applicable law.  Company acknowledges and agrees that as between the parties, Company is solely responsible for (i) obtaining all applicable rights, licenses, authorizations and permissions with respect to third party materials and each Image as necessary in order for Racemi to perform the Services, and (ii) ensuring that any use of the third party materials and each Image is in accordance with applicable terms and conditions of any third party licenses or agreements.  RACEMI SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN CONNECTION WITH THE FOREGOING AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED WITH THE FOREGOING.

d.  Conditions for Services.  Company acknowledges and agrees that the performance by Company of its obligations under these Terms, including, without limitation, as provided under this Section 3 and the assumptions described these Terms are material to Racemi’s ability to perform the Services.  Performance by Racemi of the Services is conditioned upon timely performance by Company of all such obligations. Racemi reserves the right to refuse or cancel the provision of Services to Company for any reason.

e.  Suspension of Service.  Without limiting any other remedy available to Racemi at law or in equity, Racemi reserves the right to immediately suspend the provision of Services to Company and/or Company’s right to access and use of any Racemi Systems without notice if any of the following events occur: (i) any breach of the Terms by Company or any of its personnel; (ii) if required by IBM or cloud service provider; or (iii) if Racemi determines, in its reasonable discretion, that the provision of Services to Company or the access or use of the Racemi Systems by Company or any of its personnel poses an unacceptable security risk to Racemi, IBM, any cloud services provider, any other Racemi customer or any Source Server Environment or Target Server Environment, or jeopardizes the confidentiality, security or integrity of the Racemi Systems.

4.  PROPRIETARY RIGHTS; CONFIDENTIALITY.

a.  Ownership.  Company acknowledges and agrees that Racemi owns all right, title and interest in and to all Racemi Systems and all derivatives, improvements and enhancements thereto, and any works of authorship, work product, know-how, invention, device, process, method, development, design, technique, work flow or best practices developed or created by Racemi in connection with the provision of Services, and all intellectual property rights therein.  To the extent Company acquires any rights in or to any of the foregoing pursuant to these Terms; Company hereby assigns and agrees to assign those rights exclusively to Racemi.

b.  Confidential Information.  In the performance of these Terms, Company may have access to know-how and confidential information of Racemi regarding the performance of Services and Racemi Systems.   Company agrees to protect the Racemi Confidential Information from unauthorized disclosure with the same standard of care and discretion it employs with similar information of its own, but in no event less than reasonable care, and shall not disclose or otherwise disseminate the Racemi Confidential Information.  The nondisclosure obligations in this Section 4(b) do not apply to any data or information which (A) is already known to Company prior to disclosure by Racemi as demonstrated by contemporaneous written records of Company; (B) has become generally known to the public through no wrongful act of Company; (C) has been rightfully received by Company from a third party without restriction on disclosure and without, to the knowledge of Company, a breach of an obligation of confidentiality running directly or indirectly to Racemi; or (D) is independently developed by Company without use, directly or indirectly, of the Racemi Confidential Information.

5.  DISCLAIMERS.

a.  Disclaimer Related to Services. Company acknowledges and agrees that the server migration services and capture and deployment of each Image rely on data, interfaces, networks, software and equipment provided by Company, Racemi and third parties and may fail due to a number of reasons. Racemi does not guarantee the accuracy or completeness or adequacy of the server migration services nor any captured or deployed Image, and Racemi is not and will not be liable or responsible for any error, omission, defect, deficiency or nonconformity of the Image or failure of the Image, in whole or in part, of a particular server to capture or deploy properly as part of the Services.  COMPANY ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM AND IS SUBJECT TO INTERRUPTION AND DISRUPTION, AND THAT TRANSMISSION OF INFORMATION AND DATA VIA THE INTERNET IS OUT OF RACEMI’S CONTROL.  RACEMI IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR CORRUPTION OF INFORMATION, DATA OR IMAGES DURING ANY TRANSMISSION OVER THE INTERNET OR OUTSIDE THE RACEMI SYSTEMS.

b.  General Disclaimer.  RACEMI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THESE TERMS, ANY SERVICES PROVIDED BY RACEMI TO COMPANY, AND ANY OTHER MATERIALS PROVIDED TO COMPANY UNDER THESE TERMS OR THE OPERATION OF THE RACEMI SYSTEMS.  THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS IN THEIR PRESENT STATE AND CONDITION.  RACEMI DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, ACCURACY, TITLE, SECURITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  RACEMI MAKES NO WARRANTY OR REPRESENTATION (I) THAT THE SERVICES OR RACEMI SYSTEMS WILL BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE; OR (II) REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE MIGRATIONS, AS THE SERVICES DEPEND UPON MANY FACTORS OUTSIDE RACEMI’S CONTROL.

c.  Exclusive Remedy.  Company’s sole and exclusive remedy, and Racemi’s sole obligation, in the event of any breach or failure of the Services is for Racemi, at Racemi’s sole option, to use commercially reasonable efforts to re-perform the Services as provided under these Terms for a period not to exceed fifteen (15) days.  NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, THIS SECTION 5(c) SETS FORTH COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF BREACH OF THESE TERMS OR ANY BREACH OF WARRANTY.

6.  COMPANY WARRANTIES.  Company warrants that (a) Company has the unrestricted right and authority to enter into these Terms and no consent of any other person or entity is necessary in order for Company to enter into these Terms, and (b) Company’s receipt of Services as provided herein and the execution, delivery and performance of its obligations will not conflict with or violate any other agreement or obligations of Company.

7.  INDEMNIFICATION.  Company agrees to indemnify, defend and hold harmless Racemi, its parents, subsidiaries, and affiliates, its service providers, and all of their officers, directors, employees, agents, successors and assigns (collectively, “Racemi Indemnified Parties”)  from and against all liability to third parties and reimburse the Racemi Indemnified Parties for all costs and expenses (including, without limitation, all settlements, judgments, fines, damages, reasonable legal fees, court costs, expert fees, etc.) by reason of any claim, demand, penalty or judicial or administrative proceeding or investigation to the extent arising from or in connection with: (i) breach by Company of its representations, warranties or obligations; (ii) any use by Racemi of Credentials pursuant to these Terms; (iii) any claim for loss of data, business interruption or business loss; or (iv) any claim that the capture, transfer or deployment of any Image, or any data or server instance, violates, infringes upon, or misappropriates any intellectual property rights or other personal or proprietary rights of any person or entity or violates the terms of any agreement or any applicable federal, state, local or municipal laws, rules, regulations, ordinances, or orders.

8.  LIMITATION OF LIABILITY.  IN NO EVENT SHALL RACEMI OR ITS SERVICE PROVIDERS BE LIABLE TO COMPANY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, BUSINESS INTERRUPTION, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF RACEMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL RACEMI’S OR ITS SERVICE PROVIDERS’ AGGREGATE LIABILITY FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS, CONCERNING THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES, RACEMI SYSTEMS, OR OTHERWISE ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY THEORY OF LAW OR EQUITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE) EXCEED ANY FEES PAID TO RACEMI BY COMPANY FOR THE PORTION OF THE SERVICES GIVING RISE TO SUCH CLAIM, ANY CLAIM FOR ADDITIONAL DAMAGES OR PENALTIES BEING HEREBY WAIVED BY COMPANY.

THESE TERMS ARE MADE SOLELY BETWEEN RACEMI AND COMPANY AND IS NOT INTENDED FOR THE BENEFIT OF ANY THIRD PARTY OR CLASS OF THIRD PARTIES, WHETHER OR NOT IDENTIFIED HEREIN.  IN NO EVENT SHALL RACEMI OR ITS SERVICE PROVIDERS BE LIABLE TO ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY END USER OF COMPANY, UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE.  SUCH LIABILITY TO THIRD PARTIES HEREBY IS EXPRESSLY DISCLAIMED AND LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW FOR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE, ARISING FROM THE USE OF THE RACEMI SYSTEMS OR ANY SERVICES.

EACH OF THE PARTIES AGREES THAT THE LIMITATIONS OF LIABILITY SET OUT IN THESE TERMS ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THESE TERMS AND THAT IT WOULD NOT HAVE ENTERED INTO THESE TERMS BUT FOR THE OTHER PARTY’S AGREEMENT TO THESE LIMITATIONS OF LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED UNDER THESE TERMS. THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A BREACH OF A CONDITION OR ESSENTIAL TERM OF THESE TERMS AND IF OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

ANY CLAIM BY COMPANY MUST BE INITIATED WITHIN THREE (3) MONTHS AFTER THE CAUSE OF ACTION GIVING RISE TO THAT CLAIM ARISES.

9.  TERM AND TERMINATION.  

a.  Term.  These Terms shall commence on the Effective Date and continue until the earlier of (i) termination of these Terms as provided herein, or (ii) until the relevant Services are completed (the “Term”).

b.  Termination.  These Terms will automatically terminate upon termination or expiration, for any reason, of the agreement between Racemi and IBM pursuant to which the Services are being made available to Company.  Racemi will have the right to terminate access to the Services and Racemi Systems for Company upon any of the following events: (i) Company ceases to become a customer of IBM; or (ii) Company otherwise terminates or discontinues its use of the Services or ceases to be eligible for the Services pursuant to the agreement between Racemi and IBM.  Without limiting the rights of Racemi to suspend provision of the Services or access to the Racemi Systems at any time, Racemi will have the right to terminate these Terms and Company’s access to and use of the Services and Racemi Systems upon written notice to Company in the event Company materially breaches these Terms and the breach is incapable of cure or remains uncured for a period of ten(10) business days after receipt by Company of a written notice of breach from Racemi specifying the nature of such breach.

c.  Effect of Termination.  In the event of termination or expiration of these Terms, (i) all rights granted to Company will immediately cease and Racemi shall have the right to disable the Services and all access to the Services or Racemi Systems, including all user IDs and passwords; and (ii) upon Company’s request and at Company’s expense, except in the event of terminate due to material breach by Company, all Company Data and Images in Racemi’s possession (except data contained in Racemi’s backup files or required to be maintained under applicable law) will, in Racemi’s discretion, be destroyed.  The terms of these Terms that by their nature should survive the expiration or termination of these Terms shall so survive, including, without limitation, Sections 2(d), 3(b), 3(c), 4, 5, 6, 7, 8, 9(c), and 10.

10.  GENERAL PROVISIONS.

a.  Assignment.  Company shall not transfer, assign or otherwise convey these Terms or its rights or obligations hereunder to any other person or entity without the prior written consent of Racemi.  Any purported assignment in violation of the terms of this provision without the Racemi’s consent shall be void.  Racemi may assign these Terms upon notice to Company to any parent, subsidiary or affiliate of Racemi or to a successor pursuant to a merger, corporate reorganization or sale of stock or all or substantially all of the assets of Racemi.  Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.

b.  Independent Contractors; Third Party Providers.  Nothing in these Terms or in the course of dealing between Racemi and Company shall be deemed to create between Racemi and Company a partnership, joint venture, association, employment relationship or any other relationship other than an independent contractor relationship.  Both parties agree that they are independent entities.  Each party is responsible for the supervision, management and direction of its own employees.  The SOW has been entered into solely for the benefit of the parties hereto and is not intended to create an interest in any third party.  Company acknowledges and understands that Racemi may use the services of third party service providers in connection with the performance of Services under these Terms.

c.  Entire Agreement; Severability; Waiver; Modification.  These Terms constitute the entire agreement between the parties. These Terms supersede all prior or contemporaneous oral, implied or written agreements and shall take precedence over any inconsistent provisions contained in any purchase order issued by the Company or other communication between the parties related thereto.  If any provision of these Terms is held invalid or unenforceable, these Terms shall be enforced and construed as if the provision had not been included.  Failure or delay by either party to enforce any of the provisions of these Terms or any rights with respect to it or the failure to exercise any option provided under these Terms shall in no way be considered to be a waiver of that provision, right or option, or in any way to affect the validity of these Terms.  No waiver of any rights under these Terms, or any modification or amendment of these Terms, shall be effective or enforceable, unless it is in writing and signed by both parties.

d.  Notices.  Any notices or consents required or permitted by these terms shall be in writing and shall be deemed delivered if (i) personally delivered; (ii) sent by certified mail, postage prepaid thereon, return receipt requested, or (iii) if delivered by any overnight service, with a signed acknowledgement of receipt.  Any notices sent to Racemi will be addressed to Racemi at 360 Interstate North, Suite 360, Atlanta GA 30339, or such other address as Racemi may provide to Company in writing.  Any notices to company will be addressed to the last address shown in Company’s registration account.  Any notice to Company may be provided by email to the email address listed in Company’s registration account and such notice will be deemed to be received by Company within twenty-four (24) hours after the time it is emailed to Company at such address.

e.  Governing Law; Venue.  These Terms shall be governed by, and construed in accordance with, the laws of the State of Georgia without reference to principles of conflicts of law.  Jurisdiction and venue for any claim or cause of action arising under these Terms (other than collection actions by Racemi relating to amounts owed by Company under these Terms) shall be exclusively in the United States District Court for the Northern District of Georgia, and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, that court. If subject matter jurisdiction does not exist in the United States District Court for the Northern District of Georgia, then the exclusive forum and venue for any such action shall be the courts of the State of Georgia located in Fulton County and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, such court. In the event of a dispute, and prior to filing any litigation, the parties agree to escalate discussions to at least senior management level and to discuss in good faith the possible utilization of alternative dispute resolution procedures, including, but not limited to, non-binding mediation.

f.  Force Majeure.  Neither party shall be responsible for, or be considered to be in breach under, these Terms, nor shall any party be responsible for failure or delay in delivery or receipt of any Services provided hereunder, if caused by an act of God or public enemy, war, government acts or regulations, fire, flood, embargo, quarantine, epidemic, labor stoppages, accident, unusually severe weather, malicious acts of third parties (including, without limitation, the introduction of computer viruses), interruption of telecommunications service, or other cause beyond its reasonable control.

g.  Export Control Notice.  Company agrees to comply with applicable United States and foreign export control laws, including, by way of example, the United States Commerce Department’s Export Administration Regulations, the International Traffic in Arms regulations and any regulations or licenses administered by the Department of the Treasury’s Office of Foreign Assets Control, as may be applicable to the Services provided to Company or the use of the Racemi Systems.

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