This Software and Services Master Supply Agreement (this “Agreement”) is by and between Squadle, Inc. (“Squadle”, “our” or “we”) with a principal place of business at One Broadway, Floor 14, Cambridge, MA 02142 and the party identified on the signature page to this Agreement (“Customer” or “you” or “your”), and is effective on the later of the dates below the parties’ signatures below (the “Effective Date”).
Squadle has developed and/or licensed from third parties certain software, hardware and other technologies to provide task and operations management and communications support for various types of retail businesses, including but not limited to restaurants.
Customer wishes to have Squadle supply to it, and Squadle wishes to supply to Customer, certain Squadle-owned and/or -licensed software, certain third party hardware and other technologies to be used in connection with the operation of the Customer’s business.
Therefore, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, and intending to be legally bound, the Customer and Squadle agree as follows:
1. ORDERING; GENERAL RESTRICTIONS
Ordering. Customer may order Squadle-owned and/or -licensed software (“Software”), Squadle-owned and/or -licensed software to be accessed remotely from Squadle (“SaaS Services”), third party manufactured hardware (“Hardware”) and/or professional services, support and maintenance services and/or other services to be provided by Squadle and/or its agents and/or contracts (collectively, “Other Services”) by entering into a Pricing Addendum under this Agreement. “Pricing Addendum” means the documents for placing orders hereunder, including addenda thereto, that are entered into between Customer and Squadle. Pricing Addenda will specify (i) the specific Software, SaaS Services, Hardware and/or Other Services ordered by Customer, (ii) the schedule or term of the Software license, SaaS Services subscription and/or Other Services engagement, (iii) the applicable license, subscription and/or other fees and payment terms, (iv) the locations of the Customer’s business which will receive the applicable Services (as defined below), and (v) other terms and conditions applicable to the particular Pricing Addendum. Pricing Addenda are deemed incorporated into this Agreement by reference. In the event of a conflict or ambiguity between any term of this Agreement and a Pricing Addendum, the terms of this Agreement will govern unless the Pricing Addendum expressly states otherwise in a particular instance. Each Pricing Addendum must be expressly accepted by Squadle in writing. Additional or different terms in any written communication from Customer (such as a purchase order) are void. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. The Software, SaaS Services, Hardware and Other Services ordered by Customer hereunder are collectively referred to herein as “Services.”
General Admonitions and Restrictions. Without limitation to any other provision of this Agreement, Customer acknowledges that all Services will be provided only for and with respect to the locations set forth on the applicable Pricing Addendum, and not for and may not be used by or for any other establishment of any kind owned or operated by Customer.
2. FEES, EXPENSES AND PAYMENT
Fees and Expenses. Customer will pay Squadle and/or any authorized third-party financing services, the amounts set forth on each Pricing Addendum under this Agreement in accordance with the payment schedule set forth on the Pricing Addendum. In addition, Customer will reimburse Squadle for certain expenses incurred in performing Other Services, such as incidental expenses and travel expenses including airfare, lodgings, transportation costs, and meals. All expenses will be invoiced to Customer at Squadle’s cost.
Reconnection Fee. Squadle may impose a reconnection fee if any Services are suspended or terminated and Customer subsequently requests access to or reestablishment of any Services.
Taxes. All fees and prices established in this Agreement and the applicable Pricing Addenda are exclusive of taxes which may be imposed on Squadle or Customer for the sale, provision or use of the Software, SaaS Services, Hardware, and/or Other Services under this Agreement. Customer will pay all such taxes, except for Squadle’s U.S. federal and state income tax and Squadle’s personal property tax.
Payment. All payments will be made in U.S. currency. All payments are non-refundable. Any sum not paid by Customer when due will bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, in addition to any other remedies it may have under this Agreement and otherwise, Squadle will be entitled to suspend provision of the SaaS Services and/or Other Services and to recover from Customer the costs and expenses incurred in connection with collecting all outstanding amounts (including reasonable costs of investigation and attorneys fees). Notwithstanding anything to the contrary in this Agreement, all rights granted to Customer in connection with this Agreement are contingent upon Customer’s satisfaction of its payment obligations under the applicable Pricing Addendum.
3. TERM AND TERMINATION
Term. The term of this Agreement will begin as of the Effective Date under this Agreement or the commencement date as determined by an authorized third-party financing service, and will continue until all Pricing Addenda entered into under this Agreement are completed, expire or are terminated in accordance with this Agreement. Unless otherwise described under a particular Pricing Addendum, the term of each Software license, SaaS Service subscription and/or Other Services engagement will be two (2) years, with automatic consecutive two (2) year renewals thereafter unless written notice is delivered by one party to the other at least ninety (90) days prior to the end of the then-current term, subject to earlier termination as set forth in this Agreement.
Termination. Either party may terminate this Agreement and/or any Pricing Addendum if the other party breaches any of the terms of this Agreement or an Pricing Addendum and, if such breach is capable of cure, fails to cure such breach within thirty (30) days of receiving written notice specifying the breach. Squadle shall have the right to terminate any Pricing Addendum on ninety (90) days written notice in the event Squadle no longer provides the Software, SaaS Services and/or Other Services described in the applicable Pricing Addendum for any reason whatsoever. Squadle shall also have the right to terminate any Pricing Addendum on ninety (90) days written notice with or without cause.
Effect of Termination; Survival. Upon termination of this Agreement and/or any Pricing Addendum, Customer will (i) return all Software, Hardware, equipment and other materials previously provided by Squadle in connection with the Services under an existing authorized evaluation, trial, or pilot agreement, and (ii) pay all amounts accrued under this Agreement and the Pricing Addendum through the effective date of termination. All provisions of this Agreement and/or an Pricing Addendum which expressly or by their nature are intended to survive its expiration or termination, will survive its expiration or termination. Upon termination of any Software license, Customer will make no further use of the affected Software and will immediately deliver to Squadle or destroy the original and all copies of such Software and certify in writing to Squadle, by an officer of Customer, that it has done so.
The terms and conditions of this Section 4 will apply with respect to any Software ordered by Customer, subject to any additional and/or different terms and conditions described in any applicable Pricing Addendum.
License. In consideration of Customer's payment of the license fees for the Software and compliance with the terms and conditions of this Agreement, Squadle grants Customer a non-exclusive, nontransferable license to: (i) install, execute, copy for archival purposes, and use the Software, solely for the purpose of the operation and management of the Customer’s business at the locations set forth on the applicable Pricing Addendum, and (ii) use the accompanying user manuals and the like only in conjunction with Customer’s installation and use of the Software as permitted hereunder.
Customer's Obligations and Restrictions. Customer will (i) not disclose or provide any Software to any other party, (ii) not alter, reverse engineer, disassemble, decompile or copy any Software, except that Customer may make one copy of the Software for security backup purposes only and may copy the Software when the copying is an essential step in the use of the Software permitted by the foregoing license, (iii) limit access to Software to its employees and consultants who require access in connection with Customer's permitted use of the Software and who have agreed in writing or are otherwise legally bound to observe Customer's obligations hereunder, (iv) take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Software, and (v) reproduce on any copies of the Software all titles, trademarks, and copyright and other proprietary or restrictive legends or notices.
5. SAAS SERVICES
The terms and conditions of this Section 5 will apply with respect to any SaaS Services ordered by Customer.
Grant of Rights. In consideration of Customer's payment of the applicable SaaS Services subscription fees and compliance with the terms and conditions of this Agreement, Squadle grants Customer a non-exclusive, nontransferable right for the subscription period specified on the applicable Pricing Addendum (the “Subscription Period”) (unless earlier terminated pursuant to the terms of this Agreement) to use the SaaS Services solely for the purpose of the operation and management of the Customer’s business at the locations set forth on the applicable Pricing Addendum.
Subscription Fees. Customer will pay Squadle and/or any applicable and authorized third-party financing company, the SaaS Services fees set forth in the applicable Pricing Addendum. Customer is responsible for paying for all SaaS Services subscriptions ordered for the entire Subscription Period, whether or not such SaaS Services subscriptions are used. Squadle may change its fees at any time and from time to time. Squadle shall provide the Customer with thirty (30) days prior written notice of any such change in fees. Notwithstanding anything to the contrary herein, if Customer receives such notice of a change in fees during the Subscription Period, Customer shall be entitled to terminate the applicable Pricing Addendum for which it has received such notice during such thirty (30) day period and shall not be responsible for payment of fees for any unused SaaS Services during the remainder of the Subscription Period.
SaaS Services Period. For each SaaS Services subscription, the initial SaaS Services Subscription Period will commence on the effective date set forth in the applicable Pricing Addendum (the “Services Commencement Date”) and continue for the subscription period set forth in the applicable Pricing Addendum. The Subscription Period will automatically renew for subsequent renewal periods unless either party notifies the other party in writing of its intention not to renew at least ninety (90) days prior to the next-scheduled renewal date.
Consequences of Termination. Upon termination of this Agreement or a Pricing Addendum for SaaS Services, access to the SaaS Services will terminate. Upon termination of this Agreement for any reason other than Squadle’s uncured breach, subscription fees will continue to be due and payable (if not prepaid) until the date that the then-current SaaS Services Subscription Period was scheduled to expire.
Customer's Obligations and Restrictions.
Customer may not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the SaaS Services in any way. Customer will (i) not provide the SaaS Services to any other party, (ii) not reverse engineer, disassemble, decompile or copy the SaaS Services, (iii) limit access to SaaS Services to its employees and consultants who require access in connection with Customer's use of the SaaS Services and who have agreed in writing or are otherwise legally bound to observe Customer's obligations under this Agreement, (iv) take all reasonable precautions to prevent unauthorized or improper use of the SaaS Services, (v) not interfere with or disrupt the integrity or performance of the SaaS Services or the data contained therein, (vi) not attempt to gain unauthorized access to the SaaS Services or its related systems or networks, and (vii) not create Internet “links” to the SaaS Services or “frame” or “mirror” any content contained in the SaaS Services.
Customer shall limit the number of individual users of the SaaS Services as specified in the applicable Pricing Addendum. User licenses cannot be shared or used by more than user.
6. CUSTOMER DATA
"Customer Data" means any data, information or material created by Customer that are provided or submitted by Customer to the SaaS Services in the course of using the SaaS Services, including without limitation pricing, tax rates, customer data, employee data, customer internal operations and task data, and all other applicable data, information or materials. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and hereby grants to Squadle all necessary rights and licenses to use all Customer Data in connection with providing the Services, if and as applicable, and to use all Customer Data, in generic aggregated form, with data from other Squadle customers, in connection with Squadle’s product and service development and improvement and in connection with new or other Squadle products and services. Squadle will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer will indemnify and hold harmless Squadle from and against any claims, damages or liabilities arising in connection with Squadle’s use of Customer Data. Squadle has no obligation to retain Customer Data, whether for tax, regulatory compliance or other purposes, and may delete Customer Data, after thirty (30) days following expiration or termination, and Customer is responsible for ensuring it has made arrangements to be able to access Customer Data for tax, regulatory compliance and other purposes as it deems appropriate. Squadle shall have no responsibility to monitor customer data for customer compliance with law or any regulatory requirements or to inform customer of same.
The terms and conditions of this Section 7 will apply with respect to any Hardware ordered by Customer
Use of Hardware. The Hardware may be used only in connection with the operation and management of the Customer’s business at the locations set forth on the applicable Pricing Addendum, and at the end of the life of the Hardware, or expiration or termination of this Agreement, Customer shall take all necessary steps to fully permanently erase any computer memory or storage on such Hardware all data related to the operation and management of the Customer’s business at the locations set forth on the applicable Pricing Addendum.
Pass Through Warranty. The Hardware is provided by Squadle “AS-IS” and without warranty of any kind, express or implied. To the extent, if any, that Squadle has the right to do so, Squadle shall pass through or assign to Customer the remainder, if any, warranty Squadle obtained from manufacturers and/or vendors of the Hardware ordered under any applicable Pricing Addendum (including warranty and indemnification rights).
8. OTHER SERVICES
The terms and conditions of this Section 8 will apply with respect to any professional services ordered by Customer.
Deliverables. Customer acknowledges that (i) as between Squadle and Customer, all right, title and interest in and to any and all work product and deliverables created by Squadle in the course of providing Other Services (“Deliverables”) (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and will remain Squadle's, and this Agreement in no way conveys any right or interest in the Deliverables other than a limited license to use the Deliverables in accordance with the terms of this Agreement, (ii) the Deliverables consists of works protected by the copyright laws of the United States and international treaties, and (iii) Squadle asserts that the Deliverables embody valuable confidential and secret information of Squadle, the development of which required the expenditure of considerable time and money. Customer will have a limited, nontransferable license to use the Deliverables only in support of the operation of Customer’s locations for the purposes described in the applicable Pricing Addendum.
Maintenance and Support Services. Each Pricing Addendum for Other Services which consist of support services (“Support Services”), if any, which will be provided by Squadle with respect to the Software, SaaS Services, Hardware and/or Other Services provided, whether under the same Pricing Addendum or otherwise will contain a description of the Support Services, any applicable terms and conditions applicable to such Support Service, the fees applicable to such Support Services, and the period of time during which such Support Services shall be provided.
9. INTELLECTUAL PROPERTY RIGHTS
Customer acknowledges that (i) as between Squadle and Customer, Squadle is the sole and exclusive owner or licensee of all right, title and interest in and to the Software, and all derivative works thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith), and this Agreement in no way conveys any right or interest in the Software other than a limited license to use it in accordance with its terms, (ii) the Software consists of works protected by the copyright laws of the United States and international treaties, and (iii) Squadle asserts that the Software embodies valuable confidential, proprietary and secret information of Squadle or its licensors, the development of which required the expenditure of considerable time and money.
Customer acknowledges that (i) as between Squadle and Customer, Squadle is the sole and exclusive owner or licensee of all right, title and interest in and to the SaaS Services (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith), and this Agreement in no way conveys any right or interest in the SaaS Services other than a limited right to use them in accordance with this Agreement, (ii) the SaaS Services are works protected by the copyright laws of the United States and international treaties, and (iii) Squadle asserts that the SaaS Services embody valuable confidential, proprietary and secret information of Squadle and its licensors and other vendors, as applicable, the development of which required the expenditure of considerable time and money.
Customer agrees to execute and such documents as Squadle may reasonably request to effectuate Squadle’s intellectual property rights in the Software, SaaS Services and/or Deliverables both during the term of this Agreement and afterwards.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
Disclaimer of Warranties. Subject to the Support Services obligations of Squadle as described in Section 8.2 above, if any, the Software, SaaS Services, Hardware and Other Services are provided “AS IS”, without warranty of any kind, express or implied. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SOFTWARE, SAAS SERVICES, HARDWARE, OTHER SERVICES, DELIVERABLES OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO CUSTOMER HEREUNDER OR IN CONNECTION HEREWITH. SQUADLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO VERBAL OR WRITTEN STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY SQUADLE EMPLOYEES OR OTHERWISE, WILL BE DEEMED TO BE A WARRANTY BY SQUADLE FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF SQUADLE WHATSOEVER.
Limitation of Liability. Except to the extent specifically and unambiguously described in any Pricing Addendum, in no event will Squadle or its officers, suppliers, agents or subcontractors be liable under this Agreement and/or any Pricing Addendum for (a) any direct, indirect, incidental, special, punitive or consequential damages, lost profits, or lost or damaged data, whether arising in contract, tort (including negligence) or otherwise, or (b) any costs or expenses for the procurement of substitute equipment or services, in each case, even if such party or its officers, suppliers, agents or subcontractors have been informed of the possibility thereof. In no event will Squadle or its officers, suppliers, agents or subcontractors be liable for any amounts greater than the amounts received by Squadle pursuant to this Agreement or any Pricing Addendum thereunder. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
11. DEFENSE OF CLAIMS
By Squadle. Subject to Customer’s compliance with this Agreement and in consideration of payment of all fees required hereby, Squadle will defend Customer from any and all claims, actions, demands, losses, and causes of action arising from any third party claim that the Software, the SaaS Services or the Deliverables used by Customer as permitted by this Agreement infringe upon or misappropriates the intellectual property rights of any third party. In connection therewith, Squadle shall have the right to require that Customer cease all use of the affected Software, SaaS Services and/or Deliverables and, if requested by Squadle, return the same to Squadle. Notwithstanding any of the foregoing, Squadle will have no liability for the defense of any claim to the extent based on (a) use of a superseded and no longer supported release of the Software if the infringement would have been avoided by the use of a supported release of the Software; (b) compliance with Customer’s specifications or requirements; (c) modification of the Software or Deliverable not made by Squadle or as specifically requested by Customer; (d) use of the Software, SaaS Services or Deliverable: (i) other than in accordance with the terms and conditions set forth in this Agreement and Pricing Addenda to this Agreement and the document for the Software, SaaS Services or Deliverable, (ii) other than under normal use as set forth in the documentation for the Software, SaaS Services or Deliverable, or (iii) in combination with other software or equipment not provided by Squadle if such infringement would not have occurred without such use or combination; or (e) continuing the allegedly infringing activity after notice. Squadle ‘s obligation under this Agreement to defend Customer against third-party claims of alleged intellectual property infringement as described above may be limited to the extent Squadle is indemnified by and/or has other limited defense rights from a third party provider of Software, SaaS Services or Deliverables. For the avoidance of doubt, Squadle’s obligations under this Section 11.1 will extend only to the defense of claims, and expressly exclude any obligation to indemnify or hold harmless Customer. For the avoidance of doubt, Squadle’s defense obligations under this Section 11.1 shall not be limited by Section 10.2. For the avoidance of doubt, Squadle shall have no obligations under this Section 11.1 with respect to claims relating to Hardware.
By Customer. Customer will defend, indemnify and hold Squadle and its affiliates and their respective directors, officers, employees, agents, members, stockholders, insurers, successors and assigns harmless from any and all claims, actions, demands, losses, and causes of action arising from any breach or failure to comply with any of the provisions of this Agreement, any third party claim that any materials submitted to Squadle or their use by Squadle or other persons infringe upon or misappropriate the intellectual property rights of any third party, unauthorized use of Software, SaaS Services, Hardware, or Deliverables, or negligence or willful misconduct or criminal conduct of Customer and/or its affiliates and/or their respective employees, or subcontractors.
Procedure. If any claim is asserted against a party for which the party is entitled to defense or indemnification, as applicable, under this Section 11, the party requesting defense or indemnification, as applicable (the “Requesting Party”) will promptly notify the party required to provide the defense or indemnification, as applicable (the “Providing Party”) in writing of the assertion of the claim (but the failure to provide such notice will not relieve the Providing Party from any liability the Requesting Party may have, except to the extent such failure materially prejudices the Providing Party). Unless otherwise agreed to by the parties, the Providing Party will assume and direct the defense of such claim, including the employment of counsel, and all fees and expenses incurred in connection with defending or settling the claim will be borne solely by the Providing Party. The Providing Party will not settle any claim, other than any settlement involving only the payment of monetary damages, without the prior written consent of the Requesting Party, which consent will not be unreasonably withheld or delayed. The Requesting Party will cooperate in all reasonable respects with the Providing Party and its attorneys in the investigation, trial and defense of the claim and any appeal arising therefrom. All reasonable and documented costs and expenses incurred in connection with an Indemnified Party’s cooperation will be borne by the Providing Party. In any event, the Requesting Party will have the right at its own expense to participate in the defense of such claim. The remedies in this Section 11 are the sole and exclusive remedies available to the parties for the claims that are subject to the obligations set forth in this Section 11.
We will disclose parts of our Confidential Information to you solely for your use in the connection with the use of the Services in support of the operation and management of your business in the locations set forth in the applicable Pricing Addendum. The Confidential Information is proprietary and includes our trade secrets. During the Term and thereafter: (a) you may not use the Confidential Information in any other business or capacity (you acknowledge such use is an unfair method of competition); (b) you must maintain the confidentiality of the Confidential Information; (c) you may not make unauthorized copies of any portion of the Confidential Information disclosed in written, electronic or other form; and (d) you must implement all reasonable procedures to prevent unauthorized use or disclosure of the Confidential Information, including the use of nondisclosure agreements with your owners, officers, directors, operating partners, managers, assistant managers, employees and the like, and you must deliver such agreements to us. “Confidential Information” means our proprietary and confidential information relating to the development and operation of the Services, including knowledge of specifications, processes, procedures and equipment, and pricing for the Services and any and all other information that we provide you that is designated orally or in writing as proprietary or confidential or by its nature would reasonably be understood to be proprietary or confidential regardless of whether such information is specifically designated as proprietary or confidential.
Upon termination of this Agreement, Customer will return to Squadle all copies of the material containing Confidential Information, or any portion thereof.
13. FORCE MAJEURE
Squadle shall not be liable for any failure or delay in the delivery of any Services as a result of a Force Majeure. An event of Force Majeure is any of the following: (i) casualty or condemnation; (ii) storm, earthquake, hurricane, tornado, flood or other act of God; (iii) war, insurrection, epidemics, quarantine restrictions, civil commotion or act of terrorism; (iv) strikes or lockouts; (v) embargoes, lack of water, materials, power or telephone transmissions specified or reasonably necessary in connection with the production, storage, shipment or sale of Ingredients; (vi) failure of any applicable governmental authority to issue any approvals, or the suspension, termination or revocation of any material approvals, required for the production, storage, shipment or sale of Ingredients or (vii) any other cause beyond the reasonable control of Squadle. Any such delay or failure will suspend the affected Pricing Addendum until the delay or failure ceases, and the Pricing Addendum will be deemed extended accordingly.
14. DISPUTE RESOLUTION
Subject to the remainder of this Section 14, Customer irrevocably submits to the jurisdiction of the courts of the Commonwealth of Massachusetts in any suit, action or proceeding, arising out of or relating to this Agreement or any other dispute between Squadle and Customer, and Customer irrevocably agrees that all claims in respect of any such suit, action or proceeding must be brought and/or defended therein except with respect to matters that are under the jurisdiction of the Federal Courts of the United States, which shall be brought and/or defended in the Federal District Court sitting in Boston, Massachusetts. Customer irrevocably waives, to the fullest extent it may lawfully do so, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding and agree that service of process for purposes of any such suit, action or proceeding need not be personally served or served within the Commonwealth of Massachusetts but may be served with the same effect as if Customer were served within the Commonwealth of Massachusetts, by certified mail or any other means permitted by law addressed to you at the address set forth herein. Nothing contained herein shall affect Squadle’s rights to bring a suit, action or proceeding in any other appropriate jurisdiction, including any suit, action or proceeding brought by Squadle to enforce any judgment against Customer entered by a State or Federal Court. All controversies, disputes, or claims between the parties, including their respective Affiliates, owners, officers, directors, agents, and employees, arising from or relating to this Agreement, including the scope and validity of any provision of this Agreement (such as this Section 14), shall on demand of either party be submitted for arbitration to the American Arbitration Association (“AAA”). The arbitration shall be governed exclusively by the United States Arbitration Act (9 U.S.C. § 1, et seq.), without reference to any state arbitration statutes. The parties agree that, in connection with any such arbitration proceeding, each shall submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim that is not submitted or filed in such proceeding shall be barred. The arbitration proceedings shall be conducted in Cambridge, Massachusetts in accordance with the then-current commercial arbitration rules of the AAA, except the parties shall be entitled to limited discovery at the discretion of the arbitrator(s) who may, but are not required to, allow depositions. The parties acknowledge that the arbitrators’ subpoena power is not subject to geographic limitations. The arbitration proceedings shall be conducted on an individual basis and not on a multi-plaintiff, consolidated, collective or class-wide basis. The foregoing sentence is an integral provision of the arbitration procedures set forth in this paragraph, and may not be severed therefrom, notwithstanding Section 16(i) of this Agreement. If such sentence is determined to be invalid or unenforceable in connection with a particular controversy, dispute, or claim, then this Section 16 shall be stricken from this Agreement and neither party shall be deemed to have consented to arbitration of such controversy, dispute, or claim.
The arbitrator(s) shall have the right to award the relief that he or she deems proper, consistent with the terms of this Agreement, including compensatory damages (with interest on unpaid amounts from date due), specific performance, injunctive relief, legal fees and costs, but shall have no authority to add to, detract from, reform or alter in any manner any provision of this Agreement. The award and decision of the arbitrator(s) shall be conclusive and binding on all parties, and judgment upon the award may be entered in any court of competent jurisdiction. Any right to contest the validity or enforceability of the award shall be governed exclusively by the United States Arbitration Act.
All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
Notwithstanding anything to the contrary in this Section 16, in the event of alleged violation of Squadle’s intellectual property rights or a breach of Customer’s confidentiality obligations, Squadle may seek temporary injunctive relief from any court of competent jurisdiction.
15. GOVERNING LAW
This Agreement shall be construed under the laws of the Commonwealth of Massachusetts. In the event of any conflict of law, Massachusetts law will prevail, without regard to its conflict of law principles.
(a) As used in this Agreement, including in any Pricing Addendum, the word “including” means including without limitation. (b) Each party has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized to enter into this Agreement and to execute it and any Pricing Addendum or other attachments hereto on behalf of such party. (c) The relationship of the parties will always and only be that of independent contractors. No provision of this Agreement will be construed to create a joint venture or partnership between the parties. (d) This Agreement (including all Pricing Addenda executed by the parties) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning its subject matter. (e) The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both parties. (f) Customer may not assign this Agreement or any Pricing Addendum without the prior written consent of Squadle and any attempted assignment in violation of the foregoing will be null and void. This Agreement is fully transferable and assignable by Squadle, whether by operation of law or otherwise (without notice to Customer, or approval by Customer), and shall inure to the benefit of any transferee or other legal successor to Squadle’s interest herein. (g) Headings are for convenience of reference only and will in no way affect interpretation of the Agreement. (h) All notices will be in writing, addressed to the party at its address set forth above (or other address provided by notice) and sent by certified or registered mail, return receipt requested, overnight courier with receipted delivery, or other means providing proof of delivery. All notices will be addressed to the party to be notified at its most current principal business address of which the notifying party has been notified in writing. (i) Every part of this Agreement shall be considered severable. If for any reason any part of this Agreement is held to be invalid, that determination shall not impair the other parts of this Agreement. Any term or provision of this Agreement or any application thereof which may be invalid or unenforceable shall be ineffective only to the extent of such prohibitions or unenforceability without affecting the remainder of this Agreement or any other application of such term or provision. If any provision of this Agreement or any specification, standard or operating procedure prescribed by us is invalid or unenforceable under applicable law, we have the right, in our sole discretion, to modify such invalid or unenforceable provision, specification, standard or operating procedure to the extent required to make it valid and enforceable. (j) You must use the Services in full compliance with all applicable laws, ordinances and regulations, including any law, ordinance or regulation relating to terrorist activities. You must notify us in writing immediately upon: (a) the commencement of any legal or administrative action, or the issuance of an order of any court, agency or other governmental instrumentality applicable to the Services. (k) This Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .PDF or .JPG format), and electronic signatures will be deemed to be original signatures. (l) You acknowledge and agree that Squadle has the right to profit from the payment of the fees under the agreement and that Squadle and/or its affiliates may, in fact, profit from your payment of such fees. (m) No hardware or software of any kind may be utilized in connection with any Software, Hardware, SaaS Software or Deliverables which does not meet industry standards and any other criteria identified by Squadle from time to time. (n) This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party.