BEFORE USING ORCA/INTRADYN CLOUD EMAIL ARCHIVING SOLUTION (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THESE TERMS). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE CUSTOMER THEREIN (CUSTOMER) AND INTRADYN, PURSUANT TO WHICH THE CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE ORCA/INTRADYN CLOUD (THE ORDER FORM). THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND INTRADYN, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION BY INTRADYN AND CUSTOMER OF THE ORDER FORM (THIS AGREEMENT).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:
“Activation Date” means the day following the issuance of User login names and a password to the Customer to access the ORCA/Intradyn Cloud.
Affiliates means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means any data uploaded by Customer to the ORCA/Intradyn Cloud that would typically be provided in the normal archiving and eDiscovery of email and email communications, as well as all information generated by the Users during the use of the ORCA/Intradyn Cloud.
“Order Forms” means the ordering documents from Customers purchases from Intradyn that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein.
“ORCA/Intradyn Cloud” means the online, website application provided by Intradyn via orcaarchiver.net or intradyn.com or at such other designated URL as Intradyn may assign from time to time (collectively the Systems).
Subscription means the right to access one email archiving instance within the ORCA/Intradyn Cloud during the Subscription Term.
“Support” means the general maintenance services and technical support provided in respect of the ORCA/Intradyn Cloud set forth in Schedule A.
Users means individuals who are authorized by Customer to use the ORCA/Intradyn Cloud and who have been supplied user identification and passwords by Customer (or by Intradyn at Customers request). Users may include but are not limited to employees, consultants, contractors, and agents of Customer or its Affiliates.
Intradyn shall make the ORCA/Intradyn Cloud available to Customer and its Users pursuant to this Agreement and all Order Forms during the Subscription Term. Customer agrees that its purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Intradyn with respect to future functionality or features.
2.1 Customer Affiliates. The Subscription to the ORCA/Intradyn Cloud is granted solely to the party stated in the Order Form and its Users and shall not be shared with Customers Affiliates or third parties. Customer Affiliates and or divisions may purchase additional Subscriptions to the ORCA/Intradyn Cloud subject to the terms and conditions of this Agreement by executing separate Order Forms hereunder.
2.2 Customer Number of Users. Customer recognizes that the price of the Subscription purchased hereunder is based on the number of users in a given month. Customer agrees to use its best efforts to accurately calculate the number of users in in order to purchase the Subscription that best fits its current situation. If the number of users exceeds the subscription defined in the Order Document, Customer will move to the next subscription level based on the largest number of users for a given month.
3.1 Ownership of Customer Data. The Customer retains all rights, title and interest in and to all Customer Data. Intradyn shall not access the Customer Data except to respond to service or technical problems, or at Customers request.
3.2 Collection of Customer Data. Customer is responsible for all activities that occur in the Customer account and for Users compliance with this Agreement. Customer shall comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to the Customer in connection with the use of the ORCA/Intradyn Cloud. Customer is responsible for the collection, legality protection and use of Customer Data that is stored on the System or used in connection with the ORCA/Intradyn Cloud.
3.3 Use Guidelines. The Customer shall use the ORCA/Intradyn Cloud for its internal business purposes as contemplated by the Agreement and shall not: (i) willfully tamper with the security of the Systems or tamper with other customer accounts of Intradyn, (ii) access data on the Systems not intended for the Customer, (iii) log into a server or account on the Systems that the Customer is not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; (v) willfully render any part of the Systems unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the ORCA/Intradyn Cloud or make the ORCA/Intradyn Cloud available to a third party other than as contemplated in this Agreement; (vii) use the ORCA/Intradyn Cloud for timesharing or service bureau purposes or otherwise for the benefit of a third party; (viii) provide to third parties any evaluation version of the ORCA/Intradyn Cloud without Intradyns prior written consent; or (ix) use the ORCA/Intradyn Cloud in violation of Intradyns Acceptable Usage Policy (AUP) available at www.intradyn.com.
3.4 Communications Responsibilities. The Customer shall be responsible for the content of all communications archived by the ORCA/Intradyn Cloud.
3.5 Breaches to Section 3. In the event of a material breach under this Section 3, and in addition to any other rights and remedies under the Agreement and in law, Intradyn reserves the right to immediately suspend access to the ORCA/Intradyn Cloud until such breach, in Intradyns opinion, is no longer a threat to the Systems or other customer accounts.
WHEREAS, each party to this Agreement possesses confidential, proprietary and/or trade secret information including, without limitation, information in tangible or intangible form relating to or including: business, product, marketing, licensing or sales activities, policies, practices, outlooks, studies, reports, analyses, strategies or forecasts, finances, revenue, pricing, costs or profits, released or unreleased products including, but not limited to, software, hardware, development, research, designs, specifications, performance characteristics, code, formulas, algorithms, data, techniques, processes, inventions, testing strategies, industry, customer or consumer information and third party confidential information (the “INFORMATION”); and WHEREAS, each party in possession of INFORMATION (the “Disclosing Party”) desires to disclose some of its INFORMATION to the other party (the “Receiving Party”) subject to the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the promises made herein, the receipt of certain INFORMATION and good and other valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
4.1 Permitted Use. The Receiving Party shall handle, use, treat and utilize such INFORMATION as follows: (a) hold all INFORMATION received from the Disclosing Party in strict confidence, using no less than reasonable care; (b) use such INFORMATION only for the purpose of (i) evaluating the possibility of forming a joint business relationship or other commercial arrangement between the parties concerning such INFORMATION, and (ii) if and when such relationship is formed by a written agreement, furthering the purpose and intent expressly stated in such written agreement; (c) reproduce such INFORMATION only to the extent necessary for such purpose; (d) restrict disclosure of such INFORMATION to its employees with a need to know (and advise such employees of the obligations assumed herein); and (e) not disclose such INFORMATION to any third party, including, but not limited to, any vendor, customer, manufacturer or independent contractor, without prior written approval of such Disclosing Party. In addition, with respect to any equipment, component, software, or other items delivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, disassemble, decompile, or otherwise analyze the physical construction of, any such items.
The restrictions on the Receiving Party’s use and disclosure of INFORMATION as set forth above shall not apply to any INFORMATION that the Receiving Party can demonstrate:
i. is wholly and independently developed by the Receiving Party without the use of INFORMATION of the Disclosing Party; or
ii. is or has become generally known to the public without breach of this Agreement by the Receiving Party; or
iii. at the time of disclosure to the Receiving Party, was known to such Receiving Party free of restriction and evidenced by documentation in the Receiving Party’s possession; or
iv. is approved for release by written authorization of the Disclosing Party, but only to the extent of and subject to such conditions as may be imposed in such written authorization; or
v. is disclosed in response to a valid order of a court or other governmental body in the United States or any political subdivision thereof, but only to the extent of and for the purposes of such order; provided, however, that if the Receiving Party receives an order or request to disclose any INFORMATION by a court of competent jurisdiction or a governmental body, then the receiving party agrees:
a. if not prohibited by the request or order, immediately to inform the Disclosing Party in writing of the existence, terms, and circumstances surrounding the request or order;
b. to consult with the Disclosing Party on what steps should be taken to avoid or restrict the disclosure of INFORMATION;
c. to give the Disclosing Party the chance to defend, limit or protect against the disclosure; and
d. if disclosure of INFORMATION is lawfully required, to supply only that portion of the INFORMATION which is legally necessary and try to obtain confidential treatment for any INFORMATION required to be disclosed.
4.2 Designation. INFORMATION shall be subject to the restrictions of Section 1 if it is in writing or other tangible form and clearly marked as proprietary or confidential when disclosed to the Receiving Party or, if not disclosed in tangible form, if clearly identified as confidential or proprietary at the time of disclosure. The parties agree to use reasonable efforts to summarize the content of oral disclosures which are proprietary or confidential but failure to provide such summary shall not affect the nature of the INFORMATION disclosed or detract from the protection afforded under this Agreement if such INFORMATION was identified as confidential or proprietary when orally disclosed.
4.3 No Disclosure to Affiliates. This Agreement does not permit either party to disclose INFORMATION to any of that party’s affiliates or to any other third party.
4.4 No License or Representations. No license to a party of any trademark, patent, copyright, mask work protection right or any other intellectual property right is either granted or implied by this Agreement or any disclosure hereunder, including, but not limited to, any license to make, use, import or sell any product embodying any INFORMATION. No representation, warranty or assurance is made by either party with respect to the non-infringement of trademarks, patents, copyrights, mask protection rights or any other intellectual property rights or other rights of third persons. INFORMATION is provided “as is†with all faults. In no event will the Disclosing Party be liable for the accuracy or completeness of the INFORMATION.
4.5 No Obligation. Neither this Agreement nor the disclosure or receipt of INFORMATION shall be construed as creating any obligation of a party to furnish INFORMATION to the other party or to enter into any agreement or relationship with the other party with respect to mutual business.
4.6 Return of Information. All INFORMATION shall remain the sole property of the Disclosing Party that originally disclosed such INFORMATION, and all materials containing any such INFORMATION (including all copies made by the Receiving Party) shall be returned to the Disclosing Party or destroyed immediately upon termination or expiration of this Agreement, or upon the Receiving Party’s determination that it no longer has a need for such INFORMATION. Upon request of the Disclosing Party, the Receiving Party shall certify in writing that all materials containing such INFORMATION (including all copies thereof) have been returned to the Disclosing Party or destroyed.
4.7 U.S. Export Controls. The Receiving Party acknowledges that all products, proprietary data, know-how, software or other data or INFORMATION (herein referred to as “Products”) obtained from the Disclosing Party are subject to United States (“USâ€) Government export control laws and accordingly their use, export and re-export, may be restricted or prohibited. The Receiving Party, therefore, agrees not to directly or indirectly export, re-export, or cause to be exported or re-exported, any such Products or any direct Product thereof, to any destination or entity prohibited or restricted under US law including but not limited to US Government embargoed or sanctioned countries or entities, unless it shall have first obtained prior consent of the US Department of Commerce (or other applicable agency of the US Government, either in writing or as provided by applicable regulation, as the same may be amended from time to time). The Receiving Party agrees that no Products received from the Disclosing Party will be directly employed in missile technology, sensitive nuclear, or chemical biological weapons end uses or in any manner transferred to any party for any such end use. This requirement shall survive any termination or expiration of this Agreement.
4.8 Survivability. Each party agrees that all of its obligations undertaken herein as a Receiving Party shall survive and continue after any termination or expiration of this Agreement.
4.9 Injunctive Relief. The parties agree that any unauthorized use of any of the INFORMATION in violation of this Agreement disclosed by a Disclosing Party will cause such Disclosing Party irreparable injury for which it would have no adequate remedy at law. Accordingly, the Disclosing Party shall be entitled to immediate injunctive relief prohibiting any violation of this Agreement, in addition to any other rights and remedies available to such Disclosing Party.
5.1 Fees. The Customer shall pay to Intradyn all of the fees specified in the Order Document. Except as otherwise provided in the Order Documents, all fees are quoted in United States currency; fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and fees are non-refundable.
5.2 Invoicing and Payment. Fees for the ORCA/Intradyn Cloud and Support will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date.
5.3 Overdue Payments. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
5.4 Suspension of Service. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Intradyn reserves the right to suspend the ORCA/Intradyn Cloud without liability to Intradyn, until such account is paid in full.
5.5 Taxes. The Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than Intradyn income taxes. If Intradyn pays any such taxes on the Customer’s behalf, the Customer agrees to reimburse Intradyn for such payment unless the Customer provides Intradyn with a valid exemption certificate authorized by the appropriate taxing authority.
5.6 Expenses. If Intradyn is required to incur in any additional costs or expenses in providing Support to the Customer, Intradyn shall first obtain written approval from Customer
6.1 Proprietary Rights. The ORCA/Intradyn Cloud and all intellectual property rights therein and all intellectual property rights relating to the provision of the Support are owned or licensed by Intradyn. Except for the Subscription granted hereunder, nothing in this Agreement gives the Customer any right, title or interest to the ORCA/Intradyn Cloud or the Support.
6.2 Restrictions. Customer shall not: (i) modify, translate, or create derivative works based on the ORCA/Intradyn Cloud; (ii) create any link to the ORCA/Intradyn Cloud or frame or mirror any content contained or accessible from the ORCA/Intradyn Cloud, (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the ORCA/Intradyn Cloud; (iv) or access the ORCA/Intradyn Cloud in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the ORCA/Intradyn Cloud.
7.1 Term of the Agreement. This Agreement commences on the Effective Date and continues until the Subscription to the ORCA/Intradyn Cloud granted in accordance with this Agreement has expired or been terminated.
7.2 Term of ORCA/Intradyn Cloud Subscription. Subscription to the ORCA/Intradyn Cloud commences on the Activation Date and continues for the term specified in the Order Form (the “Subscription Termâ€). The Subscription to the Platform Application shall automatically renew for periods of 12 months at the subscription price in effect at the time of the renewal unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term.
7.3 Termination. This Agreement may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) if either 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; or (c) immediately in the event of a material breach of Section 3 hereof.
7.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay Intradyn the fees agreed in the Order Form unless Customer terminates the Agreement for cause.
7.5 Return of Customer Data. Upon written request by Customer made within 30 days after the effective date of termination, Intradyn will provide Customer with temporary access to the ORCA/Intradyn Cloud so that Customer can retrieve its Customer Data. After such 30-day period, Intradyn shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in the Systems or otherwise in its possession or control.
7.6 Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 to 11.
Each party represents and warrants that it has the legal power to enter into this Agreement.
8.1 Functionality Warranty. Intradyn warrants that the ORCA/Intradyn Cloud will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable documentation provided by Intradyn.
8.2 Security Warranty. Intradyn has implemented Appropriate Security Measures (as hereinafter defined) and maintains the ORCA/Intradyn Cloud at reputable third party Internet service providers and co-location facilities like Amazon Web Servcies.
“Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Intradyn, whether by accident or otherwise.
8.3 Disclaimer. Except as expressly provided herein, INTRADYN DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Intradyn does not warrant that the functions contained in the ORCA/Intradyn Cloud will meet the Customer’s requirements or that the operation of the ORCA/Intradyn Cloud will be uninterrupted or error-free. Further, Intradyn does not warrant that all errors in the ORCA/Intradyn Cloud can or will be corrected.
9.1 Limitation of Liability. NEITHER PARTY, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES PAID BY THE CUSTOMER FOR THE PLATFORM APPLICATION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
9.2 Exclusion of Consequential and Related Damages.
THE PARTIES AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.
9.3 The limitations of liability under Sections 9.1 and 9.2 shall not apply to any indemnification provided by either party hereunder.
9.4 Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer.
9.5 No action against either party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.
10.1 Intradyn Indemnification. Intradyn shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claimsâ€) made or brought against Customer by a third party alleging that the use of the ORCA/Intradyn Cloud, as contemplated hereunder, infringes the intellectual property rights of a third party.
Notwithstanding the foregoing if Intradyn reasonably believes that the Customer’s use of any portion of the ORCA/Intradyn Cloud and/or Support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Intradyn may, at its expense: (i) procure for the Customer the right to continue using the ORCA/Intradyn Cloud or Support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the ORCA/Intradyn Cloud and/or Support as set out herein. Intradyn shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the ORCA/Intradyn Cloud or Support with other equipment or software not supplied by Intradyn or in a manner not consistent with Intradyn’s instructions.
10.2 Customer Indemnification. The Customer agrees to indemnify and hold Intradyn harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Intradyn by a third party arising from or relating to Customer’s use of the Customer Data or the Platform Application in violation of this Agreement.
10.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
11.1 Entire Agreement. This Agreement, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms now or hereafter appended hereto, the terms of the Order Form shall govern.
11.2 Marketing. Neither party may issue press releases to this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.
11.3 Relationship of Customer and Intradyn. The parties are independent contractors. This Agreement does not create a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
11.4 Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
11.5 Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by the terms of this Agreement.
11.6 Solicitation. During the Subscription Term and for a period of one (1) year following the termination or expiration of this Agreement (the “Restricted Period”), neither party shall employ, offer employment to or solicit the employment of or otherwise entice away from the employment of the other party any individual employee or independent contractor employed or engaged by such other party during the Restricted Period without the prior written consent of such other party.
11.7 Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of Minnesota, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally attorney to the exclusive jurisdiction of the courts of the State of Minnesota, USA, and all courts competent to hear appeals there from. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.8 Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to Intradyn shall be addressed to the COO, with a copy to the Legal Department. Notices to the Customer shall be addressed to Customer’s signatory unless otherwise designated below.
11.9 Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
11.10 Facsimile Transmission/Counterparts. This Agreement (including any Order Form) may be executed and delivered by facsimile or email, and upon receipt such transmission shall be deemed delivery of an original. This Agreement (including any Order Form) may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the day and year first above written.
11.11 Electronic Signatures. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing†to the same extent and with the same effect as if the Agreement had been signed manually. In no event shall the electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
11.12 Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
Support and Maintenance:
E-mail and telephone-based help desk support is available to the Customer 9:00 am to 5:00 pm Central Time, Monday to Fridays. The Customer agrees to send all non-urgent questions and issues to the e-mail help desk and all urgent questions to the telephone- or e-mail-based help desk. The Customer acknowledges that Intradyn may schedule a system maintenance period every Saturday starting at 8:00 pm (Central Time). Intradyn may occasionally have to interrupt services outside of this time period, including for purposes of upgrades and maintenance to the ORCA/Intradyn Cloud and/or System, in which case Intradyn will attempt to announce the scheduled downtime via e-mail to the Customer’s Emergency Contacts designated below.
The Support provided under this Agreement does not include services provided with respect to the following matters:
(i) any problems resulting from the misuse, improper use, alteration, or damage of the ORCA/Intradyn Cloud;
(ii) any problems caused by modifications in any version of the ORCA/Intradyn Cloud not made or authorized by Intradyn; or
(iii) any problems resulting from the Customer combining or merging the ORCA/Intradyn Cloud with any hardware or software not supplied by Intradyn, or not identified by Intradyn as compatible with the ORCA/Intradyn Cloud, Systems.