This Agreement (this “Agreement”), governs your use of marketing automation software provided by Kinn Technologies, Inc. DBA “Tempo” (“Tempo”). You acknowledge that you have read and understood this Agreement and our Privacy Policy. If you do not agree with (or cannot comply with) this Agreement, then you may not use our Services. You (Tempo’s “Customer”) and Tempo may be referred to herein collectively as the “Parties” or individually as a “Party”.

 

 

RECITALS

1. Tempo operates the Subscription Services (as defined below) and provides access to its customers to automate marketing activities including the creation of advertising and email creative, and

2. Customer desires to access and use the Subscription Services, and Tempo is willing to provide such access, subject to the terms and conditions of this Agreement.

 

 

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.              DEFINITIONS.

(a)            “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.

(b)           “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.

(c)            “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Tempo in connection with Customer’s Use of the Subscription Services but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Tempo and made available through or in connection with the Subscription Services.

(d)           “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Tempo to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.

(e)            “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(f)            “Tempo IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(g)           “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(h)           “Subscription Services” means access to the marketing automation software platform built and maintained by Tempo.

(i)             “Use” means to use and/or access the Subscription Services in accordance with this Agreement and the Documentation.

(j)             “Effective date” means the date at which the Customer begins using the subscription service to create marketing assets.

 

 

2.              SUBSCRIPTION SERVICES; ACCESS AND USE.

(a)            Subscription Services.  Subject to the terms and conditions of this Agreement, Tempo hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 14(f)) right to: (i) Use the Subscription Services during the Term, solely for Customer’s internal business purposes; and (ii) include, only to the extent necessary, the Tempo IP (as made available by Tempo at its discretion) to automate marketing activities.

(b)           Use Restrictions.  Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other Person, or otherwise allow any Person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Tempo for use expressly for such purposes or (viii) use the Subscription Services, Documentation or any other Tempo Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.

(c)            Authorized Users.  Customer will not allow any Person other than Authorized Users to Use the Subscription Services.  Customer may permit Authorized Users to Use the Subscription Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services.  Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Tempo if Customer knows or reasonably suspects that any user name and/or password has been compromised.

(d)            Third-Party Services.  Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services.  Tempo does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.  Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.

(e)            Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Tempo reserves and, as between the Parties will solely own, the Tempo IP and all rights, title and interest in and to the Tempo IP.  No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(f)            Feedback.  From time to time Customer or its employees, contractors, or representatives may provide Tempo with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”).  Customer hereby grants Tempo a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Tempo’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.

3.              FEES

(a)            Fees.  In consideration for the rights granted to Customer and the performance of Tempo’s obligations under this Agreement, Customer will pay Tempo the fees specified for the Subscription pricing plan Customer has selected. Tempo reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days’ prior notice to Customer (which may be sent by email).

(b)           Payment to Tempo. If Customer is integrated with Shopify, Tempo’s fees will be included in Customer’s Shopify bill.

(c)            Free Trial. We may, at our sole discretion, offer a Subscription with a free trial for a limited period of time (" Free Trial").

(d)           Shopify Terms. This section is only applicable if Customer has signed up for the Services through the Shopify marketplace. In such event, Customer acknowledges that in providing the Services, Tempo is acting as a Shopify Channel Developer, as defined in Shopify’s Partner Program Agreement, the current version of which is available at https://www.shopify.com/partners/terms#part-c (“Shopify Partner Program Agreement”). Customer agrees that Tempo is not responsible for Shopify’s performance and that Tempo shall not be liable for any failures of Shopify.

4.              CONFIDENTIAL INFORMATION.

(a)            As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of Tempo.  However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.  Without limiting the foregoing, nothing in this Agreement will limit or restrict Tempo’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Tempo or its personnel acquire or obtain in connection with the performance of Tempo’s obligations hereunder.

(b)           The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Tempo may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data.  The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

(c)            Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(d)           The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

5.              SUPPORT AND SERVICE LEVELS.

(a)            Support.  Tempo will provide Customer with reasonable technical support for the Subscription Services.

(b)           Service Levels.  Subject to the terms and conditions of this Agreement, Tempo will use commercially reasonable efforts to make the Subscription Services available. 

6.              CUSTOMER MATERIALS AND DATA.

(a)            Tempo acknowledges that, as between Customer and Tempo and except as set forth in Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials.

(b)           Customer hereby grants Tempo a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Subscription Services, Professional Services and Tempo’s other related products, services and technologies during the Term.    

(c)            Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal information regarding Customer’s Authorized Users or End Users (as defined below) included in the Customer Materials that is provided or otherwise collected pursuant to the Customer Privacy Policy(as defined below)) as contemplated by this Agreement and (ii) Tempo’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

7.              PRIVACY AND DATA PROTECTION.

(a)            By using the Subscription Services, Customer acknowledges and agrees that Tempo’s collection, usage and disclosure of Customer’s, its Authorized Users and its End Users’ personal information is governed by Tempo’s Privacy Policy.

(b)           To the extent that Tempo processes personal information of Customer and Customer’s Authorized Users and End Users as a “data processor” or "service provider” under certain data privacy or protection laws, Tempo’s collection and use of personal information is subject to Tempo’s Data Processing Addendum which can be provided on request or as required in Customer jurisdiction.

 

8.              REPRESENTATIONS AND WARRANTIES.  Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

9.              INDEMNIFICATION.

(a)            Tempo Indemnification.  Subject to Section 9(b), Tempo will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Tempo (including reasonable attorneys’ fees) resulting from such Claim.

(b)           Exclusions.  Tempo’s obligations under Section 9(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Tempo; (iv) modifications to the Subscription Services by anyone other than Tempo; (v) combinations of the Subscription Services with software, data or materials not provided by Kin.

(c)            IP Remedies.  If Tempo reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Tempo may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use.  If Tempo determines that neither alternative is commercially practicable, Tempo may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.  In the event of any such termination, Tempo will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion.  The rights and remedies set forth in this Section 9 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.

(d)           Customer Indemnification.  Customer will defend Tempo against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that such Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of such Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services by Customer, its Authorized Users, or End Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b), and in each case, will indemnify and hold harmless Tempo against any damages and costs awarded against Tempo or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

(e)            Indemnification Procedures.  The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

10.           DISCLAIMER. 

Except as expressly set forth herein, the subscription services and other Tempo ip are provided on an “as is” basis, and Tempo makes no warranties or representations to customer, its authorized users or to any other party regarding the Tempo ip, the subscription services or any other services or materials provided hereunder.  To the maximum extent permitted by applicable law, Tempo hereby disclaims all warranties and representations, whether express or implied, including, but not limited to, any implied warranties of customerability, fitness for a particular purpose or non-infringement, and any warranties arising out of course of dealing or usage of trade.  Without limiting the foregoing, Tempo hereby disclaims any warranty that use of the subscription services  will be error-free, bug-free or uninterrupted.

11.           LIMITATIONS OF LIABILITY.

(a)            Exclusion of Damages.  Except for: (i) any infringement by one party of the other party’s intellectual property rights, or (ii) fraud or willful misconduct by either party, neither party will be liable to the other for any incidental, special, exemplary, punitive or consequential damages, or any loss of income, data, profits, revenue or business interruption, or the cost of cover or substitute services, arising out of or in connection with this agreement, the Tempo ip or the provision of the subscription services, whether such liability arises from any claim based on contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not such party was advised of the possibility of such loss or damage.

(b)           Total Liability.  In no event will Tempo’s total liability to customer or its authorized users in connection with this agreement, the Tempo ip or the provision of the subscription services  exceed the fees actually paid by customer to Tempo in the twelve (12) month period preceding the event giving rise to the claim, regardless of the legal or equitable theory on which the claim or liability is based, and whether or not Tempo was advised of the possibility of such loss or damage.

(c)            Basis of the bargain.  The parties hereby acknowledge and agree that the limitations of liability in this section 11 are an essential part of the basis of the bargain between Tempo and customer, and will apply even if the remedies available hereunder are found to fail their essential purpose.

12.           TERM AND TERMINATION.

(a)            Term.  This Agreement commences on the Effective Date and remains in full force and effect while during Customer’s use of the Services, unless terminated earlier in accordance with these Terms of Service. The Order Form shall set out the length of Customer’s subscription to the Services (the “Subscription Term”). Customer agrees that its subscription will automatically renew at the frequency set forth on the Order Form (e.g., monthly or annually) depending on Customer’s Subscription Term unless terminated as set forth herein.

(b)           Termination.  Customer’s subscription will continue until the last day of the Subscription Term; provided that, Customer may terminate its subscription by written notice thereof at least 30 days in advance of the end of the current Subscription Term. If Customer fails to comply with any provision of this Agreement, Tempo may terminate this Agreement immediately and retain any fees previously paid by Customer. Upon any termination of Customer’s subscription, Customer must cease any further use of the Services. If at any time Customer is not happy with the Services, its sole remedy is to cease using the Services and follow this termination process. Customer may delete an account and any associated information, upon the expiration of the Subscription Term or termination as described in this Agreement.

(c)            Survival.  This Section 12(c) and Sections 1, 2(b), 2(c), 2(f), 3, 4, 6, 8, 9, 10, 11, 12(d) and 13 survive any termination or expiration of this Agreement.

(d)           Effect of Termination.  Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a)(i) will terminate; and (ii) Customer will return or destroy, at Tempo’s sole option, all Tempo Confidential Information in its possession or control, including permanent removal of such Tempo Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Tempo’s request, certify in writing to Tempo that the Tempo Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.  

13.           TRADEMARKS.  Customer hereby grants Tempo a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) Tempo’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Tempo and in case studies.  All goodwill and improved reputation generated by Tempo’s use of the Customer Marks inures to the exclusive benefit of Customer.  Tempo will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

14.           GENERAL.

(a)            Entire Agreement.  This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

(b)           Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 14(b).  Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

If to Tempo:                Kinn Technologies Inc.

25 Broadway, Floor 10

New York, NY 10004

Attention: Joe Devoy, CEO

Email: support@withtempo.ai

 

(c)            Waiver.  Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

(d)           Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

(e)            Governing Law; Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.

(f)            Assignment.  Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer this Agreement without such consent will be void.  Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

(g)           Equitable Relief.  Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(h)           Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

(i)             Subcontracting.  Tempo may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Tempo remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Tempo will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Kin.

(j)             Export Regulation.  Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications.  Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.

(k)           U.S. Government End Users.  The Subscription Services, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the software or its documentation.

(l)             Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties.  Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

(m)          No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.