TERMS AND CONDITIONS

The Great Hires Candidate Interview Experience cloud-based services (“Service”) is a full-service candidate interviewing program provided by Great Hires, Inc. (“Company”) that allows customers to empower employees and candidates (hereinafter, the “Staff”) to improve their candidate selection process and experience. By accessing or using the Service, you signify that you have read, understood, and agree to be bound by these Terms of Use (“Terms”). If you have entered into a Corporate Agreement with us, then the terms of the Corporate Agreement control if there are conflicts with these Terms.

We reserve the right to amend these Terms at any time and without notice. If we do this, we will post the amended Terms on this page and indicate at the top of the page the date the Terms were last revised. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms.

You must be 18 or over to register, sign-up, or use the Service. We ask that children under 18 not use the Service or submit any information to us.

1. Definitions.

“Authorized User” means (i) any Staff who has a valid email address in the company’s first or second level domain name who has successfully signed up to use the Service; or (ii) a non-Staff individual who has been invited by an Authorized User, and has successfully signed up to be part of the Customer Account, who, in either (i) or (ii), has not been removed by an Administrator.

“Administrator” means (i) an individual who has an email address in his company’s first or second level domain, is the first person to claim his company’s account t name via the Service, and has his company’s authorization to establish and maintain the Customer Account and; (ii) in the case of a Corporate Account, an individual who is designated by Customer as an Administrator; or (iii) an individual who is designated by the Chief Administrator (as defined below).

“Customer Account” means the on-line Service specific to a Customer comprising Authorized Users who work for or engage with a particular Customer.

“Company Technology” means Company’s proprietary technology, interviewing platform, Account Editor, Job Editor & Candidate Interview Scheduler, Interviewer App , and Candidate App platform which includes the API, the Service, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secret, know-how and any related IP Rights throughout the world and also including any derivatives, improvements, translations, enhancements or extensions of Company Technology conceived, reduced to practice, or developed during the Term by either party.

“Corporate Agreement” means a separate agreement between Great Hires, Inc. and a Customer under which Customer purchases a paid account for the Enterprise version.

“Customer” means a company that has purchased a paid account for the Service.

“Customer Data” means all data uploaded or otherwise supplied by Customer.

“Customer Technology and Content” means Customer’s proprietary technology, including Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation, trade secrets, copy, images, logos, trademarks and any related intellectual property rights throughout the world and also including any derivatives, improvements, enhancements or extensions of Customer Technology and Content conceived, reduced to practice, or developed, during the Service Term by either party.

“Customer Usage Data” means the data generated by Customer’s use of the Company Technology, including without limitation, the performance of, and the actions of the account Users.

“Enterprise Version” means a version of the Service that is designed for larger companies with configurable features and integration capabilities to existing Customer Technology and Content. Company has sole discretion to designate which version of the Service is the Enterprise Version.

“Free Trial” means a version of the Service that is designed for companies to try the features of the Service for a specific period of time at no charge to the company. Great Hires, Inc. has sole discretion to designate which version of the Service is subject to use as a Free Trial and the duration of the Free Trial period.

“IP Rights” means rights in patents, copyrights, trademarks, mask works and trade secrets, publicity rights, and all other proprietary rights.

“Order Form” means the initial order form for the Service, and any subsequent order forms, agreed to between the parties in writing from time to time and made a part of these Terms, specifying, among other things, the number of licenses, services, fees, the Service Term and other charges as agreed to between the parties.

“Service Term” means the term during which Company will provide the Service to Customer as specified in the initial Order Form.

“Users” means Customer’s employees, contractors and candidates who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Company at Customer’s request).

1.1 Establishing a Customer Account

Any Staff with an email address in his company’s first or second level domain, who is the first person to claim his company’s domain via the Service, and who has his company’s authorization, may register and establish a Customer Account, and will automatically become the Administrator of his Customer Account. Any subsequent Staff may join her Customer Account by signing up at app.greathires.co using her company email address (which should include her company’s domain name). From time to time, Authorized Users may be asked to confirm their account with the Customer Account via an email message containing a hyperlink to the Authorized User’s account email address. We will remove any account that is not so confirmed. The first Administrator (“Chief Administrator”) and any subsequent Administrator may appoint other Administrators. Each Administrator represents and warrants that he has the express consent of an authorized officer of his company to act as the representative for the company (with the rights and obligations set forth below) who will oversee and manage the Customer Account. Once a company becomes a Customer (by purchasing a paid Enterpise Version), it may appoint a Chief Administrator or retain the current Chief Administrator (if any). If the Administrator appointed by the Customer is a Staff other than the current Chief Administrator, all former Administrators will lose all Administrator rights.

The Administrators are responsible for overseeing the use of the Service by his Customer Account and monitoring User behavior.. Without limiting the foregoing, each Administrator will: (a) monitor the activities of Authorized Users on her Customer Account; (b) ensure that only qualified users become Authorized Users and remove unqualified users, such as ex-employees; (c) remove User Content that violates the terms of this TOS.

In the event of any disputes or disagreements between members of a Customer Account, the Administrator will have the final say, and in the event of any disputes or disagreements between the Administrators, the decision of Chief Administrator will have the final say.

If you are an Administrator, you agree, and represent that you have the right to agree, to have the domain portion of your email address (“@yourcorp.com”) and/or the company or organization name and logo represented by such domain portion of your email address, listed on the GHI website in a company directory listing (“Directory”) Companies owning the domain name who do not want to be included in such published Directory may send a written request to ToS@greahires.co to remove their company or organization name from the Directory. Certain Corporate Accounts may have negotiated further modifications to what we will put into the Directory, and any agreement resulted from such negotiation will be set forth in the Corporate Agreement.

2. Service.

2.1 Service.

Company shall make the applicable Service available to Customer during the Service Term on the terms set forth in these Terms and Conditions and the Order Form(s).

2.2 Professional Service.

Customer may request Company to provide certain professional services that are ancillary to the Service, such as integration or customization (“Professional Service”). In such event, the parties will enter into a Statement of Work (“SOW”) which sets forth the scope and description of the Professional Service, deliverables, parties’ responsibilities, completion dates, fees and payment terms, and any other relevant information.

3. Use of the Service.

3.1 Company Responsibilities.

(a) Company shall ensure that the Service is available to Customer and performs substantially in accordance with the specifications. Company will maintain levels of security for the Service consistent with industry standards and designed to prevent external breaches of security as well as the loss, misuse or unintended distribution of Customer Data and Customer Usage Data.
(b) Additionally, Company will provide telephone help desk or online support services during normal business hours (between the hours of 8:00 am and 7:00 pm PST on business days). Company may access Customer’s User accounts, including without limitation Customer Data, to respond to service or technical problems.

3.2 Service Guidelines.

Customer shall use the Service solely for its internal business purposes as contemplated by these Terms and shall not use the Service to: (i) send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Customer’s clients and prospective clients as contemplated by the Service; (ii) harvest, collect, gather, or assemble information or data regarding other users without their consent; (iii) knowingly transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iv) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or (vii) harass or interfere with another user’s use and enjoyment of the Service.

4. Fees & Payment.

4.1 Fees.

Customer shall pay the fees specified in the Order Form(s), in any signed and approved additional Order Forms, and in any executed SOW. All fees are quoted in United States Dollars. Fees are non-refundable except as otherwise specifically set forth in these Terms.

4.2 Professional Service Fees.

Any work outside the scope of the Order Form or SOW performed by Company pursuant to Customer’s request will be billed at $250/hour in 15 minute- increments, unless otherwise set forth in an executed Statement of Work. 4.3 Invoicing & Payment. Charges due shall be payable according to the terms and conditions in the applicable Order Form. All payments made under these Terms shall be in United States dollars.

4.4 Intentionally Omitted.
4.5 Suspension of Service.

If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Company reserves the right to suspend the Service upon five (5) days’ advance written notice to Customer, without liability to the Customer, until such amounts are paid in full.

4.6 Taxes.

Company’s fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), and Customer is responsible for payment of all Taxes, excluding only United States taxes based on Company’s income. If Company has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.7 Billing and Contact Information.

Customer shall ensure that Customer’s license administrator maintains complete, accurate, and up-to-date Customer billing and contact information via the online Customer account section of the Service at all times.

5. Proprietary Rights.

5.1 Ownership; Reservation of Rights.

Except as expressly provided in these Terms, no other rights are granted to Company, and all rights, title and interest in all Customer Data and Customer Technology and Content, including all IP Rights, are the sole property of Customer. All rights in and to the Customer Data and Customer Technology and Content not expressly granted to Company in Section 5.3 are reserved by Company and its suppliers. Except as expressly provided in these Terms, no other rights are granted to Customer and all rights, title and interest in all Company Technology, including all IP Rights, are the sole property of Company. All rights in and to the Company Technology not expressly granted to Customer in these Terms are reserved by Company and its suppliers. Company and Customer each agree that they will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets or know-how in or underlying any software, data, or technology of the other party.

5.2 Use of Customer Usage Data.

Company is authorized to publish, share or otherwise distribute, to any party, analytics or statistics related to Customer’s use of the API, web service, portal or proxy usage, provided that such data are aggregated with the data from other Company customers or users in a manner that does not allow Customer’s data to be separated from the aggregate data and identified as relating to or belonging to Customer.

5.3 License Grants.

(a) By Company. Company agrees that, if in the course of accessing and using the Service, it is necessary for Customer to use certain items of Company Technology, Customer is hereby granted a limited, nonexclusive, internal, and royalty-free license, solely during the Service Term, to use the Company Technology solely for purposes of accessing and using the Service. Customer shall have no right to use the Company Technology for any purpose other than accessing and using the Service in accordance with these Terms. (b) By Customer. Customer agrees that if, in the course of performing the Service, it is necessary for Company to use Customer Data or Customer Technology and Content, then Company is hereby granted a limited, nonexclusive, internal, and royalty-free license, solely during the Service Term, to use the Customer Data and Customer Technology and Content solely for the purposes of delivering the Service to Customer. Company shall have no right to use the Customer Data or Customer Technology and Content for any purpose other than providing the Service. (c) Restrictions. Except as provided for in the documentation or by these Terms or as the other party may expressly permit in advance, in writing, neither party shall (a) use the other party’s name to endorse or promote any content, service, or product, including the Service, without the other party’s prior written consent; or (b) modify or make derivative works of any part of the other party’s technology or other proprietary materials. In addition, Customer shall not (x) use the API for any illegal, unauthorized or otherwise improper purposes; (y) access the API in order to build a similar or competitive product or service; or (z) use the Service in a manner fails to comply or is inconsistent with any part of the API documentation or these Terms. Each party shall preserve all of the other party’s copyright and other proprietary rights notices on the other party’s materials and all copies thereof.

5.4 Suggestions, Ideas and Feedback.

Company shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Service to the extent it does not constitute Confidential Information of Customer.

5.5 Attribution and Publicity.

Customer will display the Company logo(s) in association with the Service and in any publications, marketing materials or broadcast presentations, as well as on each Web page within any Web site owned, operated or controlled by Customer, which markets, promotes, references, or relates to the Service. All such use and display will be in accordance with Company’s Trademark Usage Guidelines communicated to Customer from time to time. With Customer’s prior written consent, Company may issue press releases relating to this Agreement.

5.6 Confidentiality.

Technology, data, and any other information shared by the parties under these Terms or relating to an Order shall be subject to the parties’ Mutual Non-Disclosure Agreement dated ___________ .

6. Warranties & Disclaimers.

6.1 Mutual Representations and Warranties.

Each party represents and warrants that it has full right, power, and authority to agree to these Terms and to perform its obligations and duties under these Terms, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. In the event of a breach of the warranties in this Section 6.1, Customer’s sole remedy is termination of these Terms. Each party shall use the Service only for lawful purposes and in accordance with these Terms. Each party will comply at all times with all applicable laws and regulations in its performance under these Terms and, in the event of a failure to comply by a party, the other party will have the right to suspend performance hereunder or terminate these Terms.

6.2 Customer Representations and Warranties.

Customer represents and warrants that: (a) its use of the Service, including Customer Data uploaded to the Service, will not violate any applicable law or regulation, or cause a breach of any agreement with any third party or unreasonably interfere with use of services offered by the Company to third parties; and (b) it will hold in confidence any access credentials (including usernames and passwords) provided to Customer by Company. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right to suspend immediately any of the Service to the extent necessary to prevent harm to Company or its business. If practicable, Company will provide notice and opportunity to cure. Once cured Company will use reasonable efforts promptly restore the Service.

6.3 Company Representations and Warranties.

Company represents and warrants that: (a) it will maintain levels of security for the Service consistent with industry standards, including implementing and maintaining an information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, and integrity of Customer Data and Customer Usage Data; (b) it will not use Customer Data except as strictly required in the performance of its services on behalf of Customer hereunder or disclose Customer Data to any third party; (c) it will not use Customer Usage Data except in accordance with Section 5.2; and (d)it will comply with applicable laws and regulations and the terms and restrictions of all platforms where the Service will be used (including without limitation Facebook and Twitter) in providing the Service.

6.4 Disclaimer of Warranties.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED SOLELY ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF ANY SUCH SERVICES IS AT ITS SOLE RISK. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

6.5 Disclaimer of Third Party Actions.

Company does not and cannot control the flow of data to or from Service or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although Company will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to Customer’s use of the Service, Company cannot guarantee that such events will not occur. Accordingly, Company disclaims any and all liability resulting from, or related to, such events.

7. Indemnification.

7.1 Indemnification by Company.

Subject to these Terms, Company shall defend, indemnify, and hold Customer harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party (a) arising from or relating to Company’s breach of its representation and warranties herein, or (b) alleging that the Company Technology infringes the IP Rights of a third party; provided, that Customer (x) promptly gives written notice of the Claim to Company, provided that failure to do so will not relieve the Company of its obligations hereunder except to the extent the Company is materially prejudiced by such failure; (y) gives Company sole control of the defense and settlement of the Claim (provided that Company may not settle or resolve any Claim without Customer’s prior written approval unless it unconditionally releases Customer of all liability); and (z) provides to Company, at Company’s cost, all reasonable assistance. Company shall have no obligations to Customer under this Section 7.1 to the extent such Claims arise from Customer’s or its User’s breach of these Terms or from the combination of the Service with any of Customer’s products, services, hardware or business processes. If any Claim is made or, in Company’s sole judgment, is likely to be made, Company may, at its discretion, either: (i) procure for Customer the right to continue to use the Service, as such use is specifically provided for in these Terms, (ii) replace or modify the Company Technology with comparable technology to avoid infringement, or (iii) terminate these Terms upon written notice to Customer, and refund any paid but unused fees to Customer.

7.2 Indemnification by Customer.

Subject to these Terms, Customer shall defend, indemnify, and hold Company harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with Claims made or brought against Company by a third party (i) that the Customer Data or Customer Technology and Content are used without the appropriate authorization or permission, or infringe the rights IP Rights of a third party; (ii) arising from Customer’s use of the Service that exceed the scope of the rights granted to Customer by Company (other than the Claim against which Company is obligated to indemnify Customer as set forth in Section 7.2); or (iii) Customer’s breach of its representations and warranties under Section 6.2; provided, that Company (a) promptly gives written notice of the Claim to Customer, provided that failure to do so will not relieve the Customer of its obligations hereunder except to the extent the Customer is materially prejudiced by such failure; (b) gives Customer the right to sole control of the defense and settlement of the Claim (provided that Customer may not settle or resolve any Claim without Company’s prior written approval unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. Customer shall have no obligations to Company under this Section 7.2 to the extent such Claims arise from Company’s breach of these Terms or Customer’s use of the Service or Company Technology as authorized and contemplated by these Terms.

8. Limitation of Liability.

EXCEPT FOR A PARTIES’ INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 5, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE LIMITATIONS OF THIS SECTION 8SHALL NOT APPLY IN RESPECT OF DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATION, BREACH OF LICENSE, OR BREACH OF CONFIDENTIALITY, NEITHER PARTY’S CUMMULATIVE, TOTAL LIABILITY TO THE OTHER FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THESE TERMS OR THE SERVICES SHALL IN NO EVENTEXCEED THREE TIMES THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

9. Term & Termination.

9.1 Term.

These Terms commence on the date an Order Form is executed by both parties and shall continue until the expiration of the Service Term for all of the Service, unless sooner terminated pursuant to these Terms.

9.1 Term.

These Terms commence on the date an Order Form is executed by both parties and shall continue until the expiration of the Service Term for all of the Service, unless sooner terminated pursuant to these Terms.

9.2 Termination for Cause.

A party may terminate these Terms for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

9.3 Effect of Termination.

Upon the effective date of termination of this Agreement: (i) Company will immediately cease providing the Service to Customer; and (ii) any and all payment obligations of Customer for Service provided through the date of termination will immediately become due. Within thirty (30) calendar days of such termination, each party will return or destroy all Confidential Information of the other party (as the other party may elect) in its possession, including any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement.

9.4 Surviving Provisions.

Upon the expiration or earlier termination of these Terms, Sections 5, 6, 7, 8, 9.3, 9.4 and 10 and any other provision that by its nature is intended to survive the expiration or termination of this Agreement shall remain in full force and effect.

10. General Provisions.

10.1 Relationship of the Parties.

These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

10.2 No Benefit to Others.

The representations, warranties, covenants, and agreements contained in these Terms are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.

10.3 Notices.

All notices under these Terms shall be in writing and shall be delivered to the address of the Customer account by means evidenced by a delivery receipt, by facsimile, or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to Company shall be addressed to the attention of its CEO, with a copy to its General Counsel.

10.4 Waiver and Cumulative Remedies.

No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.5 Severability.

If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate these Terms by notice to the other party.

10.6 Assignment.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign these Terms, without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets which does not involve a direct competitor of the other party; provided, however, if these Terms provide for an unlimited use or enterprise license, an assignment by Customer may result in an increase in fees. Any attempt by a party to assign its rights or obligations under these Terms in breach of this Section 10.6 shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.7 Governing Law.

These Terms shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions.

10.8 Venue.

The federal and state courts located in the Northern District of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.

10.9 Export Control Laws.

Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under these Terms.

10.10 Entire Agreement and Construction.

These Terms, any Exhibits and the Order Form(s) constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of these Terms. Except as contemplated to the contrary herein with respect to Order Forms, no modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any actual conflict between the provisions in these Terms and the Order Form(s), the terms of the Order Form will take first precedence. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of these Terms.

10.11 Counterparts.

These Terms may be executed in counterparts, which taken together shall form one legal instrument. A copy transmitted via facsimile or electronic mail of these Terms, bearing the signature of one or both parties shall be deemed to be of the same legal force and effect as an original of these Terms bearing such signature(s) as originally made by such parties.

10.12 Force Majeure.

Neither party will be deemed in breach of these Terms if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks.