FLYDATA / AWS REDSHIFT SUBSCRIPTION AND SERVICES AGREEMENT
This FLYDATA / AWS Redshift Subscription and Services Agreement (the “Agreement”) is made and entered into as of the date you (“Subscriber”) signed up using our online ordering document (“Effective Date”), between FlyData, Inc. (“FlyData”) and Subscriber. This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of Amazon Web Services’ web-based services together with certain services provided by FlyData.
BY CLICKING “Sign Up”, SUBSCRIBER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THE AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THE AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “SUBSCRIBER” WILL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THE AGREEMENT, YOU MUST NOT CLICK “Sign Up” OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND MAY NOT USE THE SERVICES PROVIDED UNDER THIS AGREEMENT.
1.1 “AWS” means Amazon Web Services, Inc.
1.2 “Amazon Redshift” means the Amazon Redshift data warehouse service offered by AWS.
1.3 “Amazon S3” means the Amazon Simple Storage Service offered by AWS.
1.4 “Amazon Services” means, collectively, Amazon Redshift and any related Amazon services necessary for Subscriber to use Amazon Redshift of otherwise elected by Subscriber. A list of Amazon services is available at: https://s3.amazonaws.com/Reseller-Program-Legal-Documents/Authorized+AWS+Services.pdf.
1.5 “FlyData Client Software” means the computer software program owned by FlyData and provided to Subscriber in object code format only.
“Order Page” means the online order webpage Subscriber used to order these FlyData Services.
1.6 “FlyData Services” means the web-based services identified in the Order Page.
1.7 “Documentation” means FlyData-provided user documentation, in all forms, relating to the FlyData Client Software and the FlyData Services (e.g., user manuals, on-line help files).
1.8 “FlyData Technology” means, collectively, the FlyData Client Software, the FlyData Services and the Documentation.
1.9 “Scope Limitations” means the limitations on Subscriber’s use of Amazon Redshift and, if applicable, the FlyData Services specified in the Order Page.
1.10 “Subscription Services” means, collectively, Amazon Services and, if applicable, the FlyData Technology.
2. AMAZON REDSHIFT
2.1 Use of Amazon Redshift. FlyData is authorized by AWS to resell Amazon Redshift. Subject to the terms and conditions of this Agreement, FlyData grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to access and use Amazon Redshift solely in connection with Subscriber’s internal business operations. Subscriber’s right to use Amazon Redshift is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations.
2.2 Additional Terms. By entering this agreement, Subscriber acknowledges that its use of AWS services is subject to the AWS Customer License Terms, a separate agreement between Subscriber and AWS, a current version of which is located at http://aws.amazon.com/agreement/. In addition to the terms and conditions set forth in this Agreement, Subscriber’s use of Amazon Redshift is subject to the terms and conditions provided by AWS and located at the URLs below, if available (collectively, the “Additional Terms”). All Additional Terms are hereby incorporated by reference into, and made a part of, this Agreement.
• AWS Acceptable Use Policy: http://aws.amazon.com/aup/
• AWS Customer Agreement: http://aws.amazon.com/agreement/
• Any additional terms, policies, rules or guidelines applicable to the use of the Amazon Services provided at any time by AWS to FlyData or Subscriber or made available by AWS at http://aws.amazon.com/ or other associated web page
3. ADDITIONAL AMAZON SERVICES
3.1 Redshift Support. To the extent necessary to support Amazon Redshift, FlyData may enroll Subscriber in or provide Subscriber access to additional Amazon Services as further described on an applicable Order Page.
3.2 Ancillary Costs. Subscriber may incur additional costs for its use of any Amazon Services in addition to Amazon Redshift. FlyData will use its reasonable business judgment to determine whether to initiate additional Amazon Services on Subscriber’s behalf, and will use commercially reasonably efforts to notify Subscriber of any additional Amazon Services; provided that Subscriber will be responsible for all fees relating to such Amazon Services. The fees and payment terms of Section 5 shall apply to fees due under this Section 3.
4. FLYDATA SERVICES
4.1 Consulting Services. If Subscriber elects to receive consulting services relating to Subscriber’s use of Amazon Redshift (as specified on an applicable Order Page) then FlyData will provide Subscriber with the consulting services described on the applicable Order Page (the “Consulting Services”). FlyData will provide the Consulting Services in a workmanlike manner consistent with industry standards.
4.2 FlyData Services. If Subscriber has elected to receive FlyData Services (as specified on the applicable Order Page), the provisions of this Section 4.2 shall apply.
(a) Subject to the terms and conditions of this Agreement, FlyData grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to (i) download and install the FlyData Client Software on Subscriber’s computer processing units solely for the purposes of accessing and using the FlyData Services; and (ii) access and use the FlyData Services via the FlyData Client solely in connection with Subscriber’s internal business operations. Subscriber’s right to use the FlyData Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations.
(b) Use of the Documentation. Subject to the terms and conditions of this Agreement, FlyData grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the FlyData Client Software and the FlyData Services in accordance with this Agreement.
(c) Feedback. If Subscriber provides any feedback to FlyData concerning the functionality and performance of the FlyData Client Software or FlyData Services (including identifying potential errors and improvements), Subscriber hereby assigns to FlyData all right, title, and interest in and to the feedback, and FlyData is free to use the feedback without payment or restriction.
(d) Open Source Software. Certain modules contained in the FlyData Client Software provided under this Agreement may include software that is subject to open source terms (collectively, \”Open Source Software\”). Please visit the FlyData website at http://www.FlyData.com/oss-licenses to obtain the terms of any applicable open source licenses. Subscriber agrees that all Open Source Software (if any) is and will remain subject to the terms and conditions under which it is provided. It is understood that such terms and conditions may require the source code (including derivative works and collective works) to be made available to the public for use in accordance with the terms and conditions applicable to the Open Source Software.
4.3 Service Level; Technical Support. FlyData will provide Subscriber with remote access to the Subscription Services in accordance with the service levels specified the applicable Order Page. For so long as Subscriber is current with its payment of the fees specified on the Order Page, FlyData will use reasonable efforts to provide Subscriber with technical support services relating to the FlyData Client Software and the FlyData Services by email or telephone from 9am-5pm Pacific, Monday through Friday, excluding holidays.
4.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Subscription Services; (b) use the Subscription Services to provide services to third parties (e.g., as a service bureau); nor (c) circumvent or disable any security or other technological features or measures of the Subscription Services.
4.5 Compliance with Laws. Subscriber will use the Subscription Services in compliance with all applicable laws and regulations.
4.6 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Subscription Services and immediately notify FlyData in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Subscription Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by FlyData to prevent or terminate unauthorized use of the Subscription Services.
4.7 Reservation of Rights. FlyData grants to Subscriber a limited right to use the Subscription Services under this Agreement. Subscriber will not have any rights to the Subscription Services except as expressly granted in this Agreement. FlyData reserves to itself all rights to the Subscription Services not expressly granted to Subscriber in accordance with this Agreement.
5. FEES AND PAYMENT
5.1 Fees and Payment Terms. Subscriber will pay FlyData the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified on the Order Page. Unless otherwise specified on the Order Page, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by FlyData to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
5.2 Taxes. Other than net income taxes imposed on FlyData, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by FlyData after all such taxes are paid are equal to the amounts that FlyData would have been entitled to in accordance with this Agreement as if the taxes did not exist.
6. TERM AND TERMINATION
6.1 Term. This Agreement will commence upon the Effective Date and continue for the initial term specified on the Order Page unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive renewal terms as specified on the Order Page.
6.2 Termination For Convenience. Either party may terminate for convenience on 30 days’ notice. In the event that FlyData terminates for convenience, and Subscriber has pre-paid fees for the period following termination, Service Provider will provide Subscriber a pro-rated refund for such period.
6.3 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 6.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, FlyData may, without limitation to any of its other rights or remedies, suspend performance of the Subscription Services until it receives all amounts due.
6.4 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber will pay to FlyData any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will provide FlyData with a written certification signed by an authorized Subscriber representative certifying that all use of the Subscription Services by Subscriber has been discontinued and that, if applicable, all copies of the FlyData Client Software and Documentation provided to, created by or otherwise in the possession of Subscriber have been deleted or destroyed, as applicable. SUBSCRIBER AGREES AND ACKNOWLEDGES THAT, FOLLOWING THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT, (i) SUBSCRIBER WILL HAVE 30 DAYS TO MIGRATE SUBSCRIBER’S DATA TO A NEW SERVICE PROVIDER, AND (ii) FlyData WILL HAVE THE RIGHT TO DELETE ALL OF SUBSCRIBER’S DATA FROM ITS (AND ITS THIRD PARTY) SERVERS FOLLOWING SUCH 30 DAY PERIOD WITHOUT NOTICE TO SUBSCRIBER.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, FlyData MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. FlyData EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. FlyData DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SUBSCRIPTION SERVICES. FlyData DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SUBSCRIPTION SERVICES WILL BE SECURE OR UNINTERRUPTED. FlyData DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SUBSCRIPTION SERVICES IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION PROVIDED WILL ALWAYS BE AVAILABLE. FlyData EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SUBSCRIPTION SERVICES.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Defense of Infringement Claims. FlyData will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the FlyData Technology infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: (a) Subscriber gives FlyData prompt written notice of the Claim; (b) Subscriber grants FlyData full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as FlyData may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing FlyData Services). Subscriber will not defend or settle any Claim without FlyData’ prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but FlyData will have sole control over the defense and settlement of the Claim.
8.2 Indemnification of Infringement Claims. FlyData will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without FlyData’ consent after FlyData has accepted defense of the Claim); and (c) all amounts that FlyData agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. FlyData will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the FlyData Technology in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the FlyData Technology is provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the FlyData Technology by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the FlyData Technology in accordance with instructions provided by FlyData, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the FlyData Technology not made or authorized in writing by FlyData where such infringement or misappropriation would not have occurred absent such modification.
8.4 Limited Remedy. This Section 8 states FlyData’ sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the FlyData Technology.
9. SUBSCRIBER INDEMNIFICATION
9.1 Defense. Subscriber will defend FlyData from any actual or threatened third party Claim arising out of or based upon Subscriber’s use of the Subscription Services or Subscriber’s breach of any of the provisions of this Agreement if: (a) FlyData gives Subscriber prompt written notice of the Claim; (b) FlyData grants Subscriber full and complete control over the defense and settlement of the Claim; (c) FlyData provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) FlyData complies with any settlement or court order made in connection with the Claim. FlyData will not defend or settle any Claim without Subscriber’s prior written consent. FlyData will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Subscriber will indemnify FlyData from and pay (a) all damages, costs, and attorneys’ fees finally awarded against FlyData in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by FlyData in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 9.1.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, FlyData WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF FlyData IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FlyData’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO FlyData DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FlyData TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.1 Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
11.2 Restricted Use and Nondisclosure. During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 11; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
11.3 Required Disclosure. If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
11.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
12.1 Relationship. FlyData will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
12.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that FlyData may assign this Agreement without the Subscriber’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of FlyData’ obligations under this Agreement. For the purposes of this Section 12.2, the term “assignment” is deemed to include any direct or indirect transfer of this Agreement to another entity by way of merger, reorganization, consolidation or sale of all or substantially all of a party’s assets or equity securities in one transaction or a series of related transactions.
12.3 Subcontractors. FlyData may utilize a subcontractor or other third party to perform its duties under this Agreement so long as FlyData remains responsible for all of its obligations under this Agreement.
12.4 Reference. Subject to Section 11 regarding confidentiality, Subscriber will permit FlyData to issue and publish a press release containing a quotation from a representative of Subscriber announcing that Subscriber has subscribed to use the FlyData Services and the general context of the intended use. In addition, Subscriber hereby consents to FlyData’ display of Subscriber’s logo on FlyData’ web site where FlyData displays the names and logos of its customers. Press releases and other publicity related to Amazon Redshift is prohibited by the AWS Customer Agreement.
12.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 12.5. Subscriber shall give notice to FlyData promptly upon any change of address or contact information. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
12.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
12.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California in connection with any action arising out of or in connection with this Agreement.
12.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Subscription Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Subscription Services will immediately terminate.
12.10 Counterparts. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in two or more counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a fax machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent that such defense relates to lack of authenticity.
12.11 Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
12.12 Entire Agreement. This Agreement, including all exhibits and Additional Terms, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Subscription Services. In the event of a conflict between the terms herein and the Additional Terms, the Additional Terms shall control. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of FlyData has any authority to bind FlyData with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. FlyData will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless FlyData specifically agrees to such provision in writing and signed by an authorized agent of FlyData.
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