These Terms of Service are part of the Marketing Plan Agreement between Company (sometimes herein referred to as AppointPanda Inc or we or our or us) and Customer (which is sometimes referred to as you or your). The Company’s Services are governed by these Terms of Service. All capitalized words used but not defined herein shall have the meaning given to them in the Order. As used in these Terms of Service, Agreement means the Marketing Plan Agreement including the Order and these Terms and Conditions and any document or policy referenced herein.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TERMS OF SERVICE AND THE DOCUMENTS REFERENCED HEREIN (ALL OF WHICH BY THIS REFERENCE ARE INCORPORATED HEREIN AND MADE A PART HEREOF), UNDERSTANDS IT, AND AGREES TO BE BOUND BY THEM.
Company reserves the right to modify these Terms of Service and any marketing plans affecting the Services, including any schedule referenced herein, at any time upon written notice to Customer. If we make any changes, we will notify you by revising the version and its effective date and adding a statement to the log-in screen or sending you an email notification, as applicable. Customer’s continued use of the Services after any such modification and notice shall be conclusively deemed its acceptance of all such modifications. Customer’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision is to terminate Customer’s Marketing Plan Agreement in accordance with these Terms of Service. Notwithstanding the foregoing, Company may not revise the terms of the Order except by written agreement signed by duly authorized representatives of Customer and Company.
1. DEFINITIONS – The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1 BAA means the Business Associate Agreement posted at https://appointpanda.com/baa
1.2 Customer Data means text and data in electronic form on the Website input or collected through the Website by or from Customer or Customer’s Users. Customer Data also includes Company’s Advertising Materials.
1.3 Company Content means text, graphics and data in electronic form on the Website prepared and input by Company.
1.4 Dashboard means AppointPanda’s proprietary marketing and analytic software tools made available to Customer upon account activation to evaluate the performance and efficacy of the Website.
1.5 Order is defined in the Plan Order attached to the Marketing Plan Agreement executed by Customer and Company to which these Terms of Services are incorporated by reference.
1.7 Service means the Service as specified in the Order, as supplemented by Section 2 below.
1.8 User means any individual who uses the Website who is a prospective or actual patient of Customer’s business.
1.9 Website means the Website Framework, including Company Content, accessible via the Domain Name registered by Company or Customer hosted by Company.
1.10 Website Framework means the structure and layout including the look and feel of the Website prepared by Company.
2. THE SERVICE
2.1 General: During the Term, Company will use commercially reasonable efforts to provide Customer the Services pursuant to:
a. the terms of any outstanding Order.
b. these Terms of Service, including the terms of any policy and agreement referenced herein, as the same may be updated from time to time as provided herein.
2.2 Website Framework Development: The Website Framework is an essential and mandatory element of the Services. Upon Company’s development and Customer’s approval thereof, Customer will use, as its exclusive website, the Website including the Website Framework prepared by Company using Company’s proprietary technology.
2.3 Development Timeframe: A tentative first showcase preview of the initial draft of the Website Framework will be made available to you for your review within a reasonable time after you approve of the following elements, which we will discuss with your designated representative prior to and during development:
c. Conceptual Framework Elements
e. Domain Name
f. Sitemap Selection (see paragraph 2.4 below)
g. Company Content
i. Google+ Account Access
j. Social Media Account Access
k. Customer Logo
If you do not approve any of the above listed elements within 60 days of your account activation, Company will make a default decision for each unapproved element based on its experience and belief of the most appropriate settings for your business.
The Website Framework will be developed and deployed to display publicly, online at the discretion of AppointPanda, within a reasonable time based on the number of elements and complexity of the requested Website Framework. Prior to FINAL launch (or the go live date) of your AppointPanda Website development, you will be given the number of opportunities included in your Plan Features to review and request revisions, edits or other modifications.
2.4 Sitemap: The Sitemap referenced in subsection 2.3(d) above is the number of pages that will be migrated or copied over to your Website Framework from any web property you own. We will not proceed to copy and transfer pages and the content thereof from existing web pages without the proper request from you, subject to limitations imposed by any third party’s copyrights. Content and page migration requests are limited to the number of pages included in your Plan Features.
2.5 Google+ Local Optimization: If included in your Plan Features, Google+ Local page optimization is offered by AppointPanda through a Local PIN number verification process. AppointPanda may provide sufficient optimization to the Google+ Local page by way of instructional support guidance tips and suggestions. If no access to Google+ Local page can be provided or obtained to implement updates, changes or edits, this feature not affect any other required element of the Services provided by Company. If included in your Plan Features, you are solely responsible for allowing the access required to the Google+ Local profile, sufficient enough to implement the changes edits and updates recommended by AppointPanda development and support teams.
2.6 Customer Data and Advertising Materials: The Customer agrees to submit to AppointPanda, as and when requested by AppointPanda, any Customer Data and (collectively, Advertising Materials): any advertising and promotions materials including text, graphics and other content which Customer wants on the Website or posted on social media; provided, however, AppointPanda has the right, at any time, to deny or prevent use of any Customer Data if and to the extent the same fails to meet the Uniform Advertising Specifications of AppointPanda. Uniform Advertising Specifications means, with respect to Customer Data, it:
l. conforms to the technical requirements of AppointPanda
m. is legal, true and not misleading and harmful or offensive because it is defamatory, obscene, prurient, abusive, invasive of privacy, or otherwise is objectionable; and
n. it will not damage, interfere with, surreptitiously intercept, or expropriate any component of our System (our network, computer or communications system, software, or network) or computing device, or includes viruses, Trojan horses, worms, time bombs, or cancelbots
2.7 Dashboard: As and when permitted by AppointPanda, upon account activation by AppointPanda, Customer may access the Dashboard available to Customer in accordance with these Terms of Service and any other rules and policies of AppointPanda then in effect. Access requires that Customer establish password, which Customer agrees to safeguard against unauthorized use. Customer may authorize its employees or subcontractors to use the Dashboard on its behalf provided:
o. Customer is and hereby agrees to be responsible for the actions of persons to whom it provides the password and authorizes to access the Dashboard and
p. each such person agrees to be bound all restrictions contained or referenced in these Terms of Service.
2.8 Hosting Services and Updates: The Services are hosted on our System. AppointPanda may update the features, functionality of the System and Dashboard at any time, and from time to time, in its sole discretion.
2.9 Customer Requests Beyond Plan Features: AppointPanda will notify you of any services you request that are not included in your Plan Features to which Customer Development Fees may apply. Custom Development Fees will not be charged until the nature and scope of such extra services is mutually agreed in writing and completed by Company.
2.10 Service Fees: Customer will pay Company when due the Fees stated in the Order (individually or collectively, the Fees). All Fees are payable to Company up front or at the beginning of any recurring period (per terms of the Order) by way of Customer’s credit card electronic debit from Customer’s bank account, which Customer agrees to keep current until all Fees due Company are paid. Unless otherwise stated in the Order, Company reserves the right to change the Fees or applicable charges and to institute new charges during the Term of Service, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
For payment methods other than credit cards, or if your credit card is unusable, full payment of Fees due Company must be received by Company within thirty (30) days from the due date thereof. Unpaid amounts are subject to a late charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Fees and charges stated in the Order or due under this these Terms of Service are nonrefundable.
3. CUSTOMER DATA & PRIVACY
3.1 Use of Customer Data: Unless it receives Customer’s prior written consent, Company: (a) will not access, process, or otherwise use the Services or Customer Data other than as permitted hereunder; (b) will not cause any unauthorized access to Customer Data. However, Company may disclose Customer Data as required by applicable law or by proper legal or governmental authority, subject to the terms of the BAA. Company will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
3.3 Risk of Exposure: Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Website, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
3.4 Data Accuracy: Company will have no responsibility or liability for the accuracy of data uploaded to the Website by Customer, including without limitation Customer Data and any other data uploaded by Users.
3.5 Customer Data: Company takes seriously the security of Customer Data and, thus, has taken measures. Company deems reasonable and necessary to safeguard the Customer Data on Company’s servers against loss or unauthorized exposure. Any time Company is required to return Customer Data following termination of the Services, Company will do so on a SQL Server MDF file, and unless earlier returned or destroyed as agreed by Company and Customer, Company will return all Customer Data and destroy all other whole or partials copies thereof in its possession promptly following the 30th day after termination of the Services.
3.6 Protected Health Information: If Customer Data includes any Protected Health Information (as defined in the BAA, the privacy and security of such information shall be governed by the terms of the BAA.
4. CUSTOMER’S OBLIGATIONS & RESTRICTIONS
4.1 Timely Cooperation: Receipt end enjoyment of the full benefits of the Service requires your cooperation, approval, transfer of DNS, adherence to all tracking protocol (including call tracking), and active participation with or of or regarding any request or requirement relating to the Services made by AppointPanda Website development or support team staff.
4.2 Restrictions: Customer agrees that it will not or permit others to: (a) share Company’s non-public information with any third party without consent of Company; (b) use the Services in order to build a competitive product or service, or to copy any ideas, features, functions of the Website Framework for use not in connection with the Website we prepare for your use; (c) discover or attempt to discover, or assist or permit any person to discover or attempt to discover, by any means whatsoever the source code (the human-readable form) of any element of Service or software made available for your use; (d) access, process, or otherwise use the Services or Customer Data other than as permitted hereunder; or (e) circumvent or disable any security or features of the Service.
4.3 Unauthorized Access: Both parties will take reasonable steps to prevent unauthorized access to Customer Data, including without limitation by protecting its passwords and other log-in information. Either party will notify the other party immediately of any known or suspected unauthorized use of such data or breach of its security and will use all reasonable means to stop said use or breach.
4.4 Compliance with Laws: During the Term of Service both Parties will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
4.5 Users & System Access: Customer is responsible and liable for Users’ use of the System, including without limitation unauthorized User conduct and the requirements of this Agreement applicable to Customer.
5. IP RIGHTS & FEEDBACK
5.1 Company’s IP Rights: Company retains all right, title, and interest in and to the Website Framework and Company Content, including without limitation all software and technical data used to develop the Website and all graphics, user interfaces, or any components of the foregoing or any logos, trademarks, service marks or other designations (whether or not registered) used by Company, including, but not limited to, the name and mark AppointPanda, used by Company (collectively, Company IP). This Agreement does not grant Customer any intellectual property license or rights in or to any Company IP.
5.2 Customer’s IP Rights: Customer retains all right, title, and interest in and to Customer Data and Customer Content and any logos, trademarks, service marks or other designations (whether or not registered) used by Customer in connection with is business (excluding Company IP) (collectively, Customer IP). This Agreement does not grant Company any intellectual property license or rights in or to any Customer IP other such rights to use Customer IP as is necessary for Company to perform this Agreement.
5.3 Non-Exclusive License: So long as Customer has paid all Fees as and when due during the Term of Service, and thereafter in exchange for payment of the applicable Optional Fees after the Term of Service, Company hereby grants Customer the exclusive right and license to use the Website and Company Content for Customer’s internal business purposes. This right and license is transferable to any third party owned or controlled by Customer.
5.4 Feedback: Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer provide to Company, and nothing in this Agreement or in the Parties’ dealings arising out of or related to the Services will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the source in question. Notwithstanding the provisions of Article 6 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (Feedback refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)
6. CONFIDENTIAL INFORMATION:
Confidential Information refers to the following items either party discloses to the other: (a) any document either party marks Confidential; (b) any information either party orally designates as Confidential at the time of disclosure, provided the disclosing party confirms such designation in writing within 5 business days; and (c) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in either party’s possession at the time of disclosure; (ii) is independently developed by either party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of either party’s improper action or inaction; or (iv) is approved for release in writing by either party in accordance with this agreement.
6.1 Nondisclosure: Neither party will use Confidential Information for any purpose other than for performing their respective express obligations in these Terms of Service (the Purpose). Neither party: (a) will disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with the disclosing party with terms no less restrictive than those of this Article 6; and (b) will not disclose Confidential Information to any other third party without either party’s prior written consent. Without limiting the generality of the foregoing, the parties will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Each party will promptly notify the other party of any misuse or misappropriation of Confidential Information that comes to their attention. Notwithstanding the foregoing, either party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Each party will give the other party prompt notice of any such legal or governmental demand and reasonably cooperate with the other party in any effort to seek a protective order or otherwise to contest such required disclosure, at their own expense.
6.2 Injunction: The parties agree that breach of this Section 6 would cause the non-breaching party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
6.3 Termination & Return: With respect to each item of Confidential Information, the obligations related to Confidential Information constituting either party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, the non-disclosing party will return all copies of Confidential Information to the other party or certify, in writing, the destruction thereof.
6.4 Retention of Rights: This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The parties will retain all right, title, and interest in and to all Confidential Information.
6.5 Exception & Immunity: Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), both parties acknowledge that, notwithstanding the foregoing or any other provision of this Agreement:
a. Immunity: An individual shall not be held civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
b. Use of Trade Secret Information in Anti-Retaliation Lawsuit: An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
7. REPRESENTATIONS & WARRANTIES
7.1 From Company: Company represents and warrants that it is the owner Company IP or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the warranty in this Section 7.1, or if in Company’s opinion the Website or Company Content is likely to become the subject of an infringement claim, Company may, at its option and own expense: (a) secure for Customer the right to continue using the same; (b) replace or modify it to make it non-infringing; or (c) terminate the infringing features thereof. In conjunction with Customer’s right to terminate for breach where applicable, and notwithstanding anything in the Agreement to the contrary, the preceding sentence states Company’s sole obligation and liability, and Customer’s sole and exclusive remedy, for breach of the warranty in this Section 7.1 and for potential or actual intellectual property infringement.
7.2 From Customer: Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement; (b) if an entity, it is a corporation, limited liability company or another entity validly existing and in good standing under applicable law.
7.3: In addition, Customer represents and warrants to and agrees with Company that: (i) Customer is solely responsible for all Customer Data available on the Website, (ii) Customer is the sole and exclusive owner of all such Customer Data or Customer has all rights, licenses, consents and releases that are necessary to make such data available on the Website, (iii) neither the Customer Data nor Customers making it available through the Website will infringe, misappropriate or violate a third party’s proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation to which Customer or the Customer Data is subject.
7.4 Warranty Disclaimers: Except to the extent set forth in Section 7.1, CUSTOMER ACCEPTS THE SERVICES AND WEBSITE AS IS AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR WEBSITE OR COMPANY CONTENT OR ANY COMPANY IP WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer will defend, indemnify, and hold the Company harmless and the Company Associates (as defined below) against any Indemnified Claim, meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Services, Website or Company IP, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data, caused by Customer, its employees, subcontractors, agents and/or Users; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Website through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Website through Customer’s account harasses, defames, or defrauds a third party. Indemnified Claims include, without limitation, claims arising out of or related to Customer’s negligence. Customer’s obligations set forth in this Section 8 includes retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (Company Associates mean Company’s officers, directors, managers, members, subcontractors, agents, successors, and assigns and those of any affiliate of the Company.)
9. LIMITATION OF LIABILITY
9.1 Exclusion of Consequential Damages: IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT INCLUDING WITHOUT LIMITATION THE WEBSITE OR SERVICES.
9.2 Clarifications & Disclaimers: THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Company’s liability will be limited to the maximum extent permissible, and in any case the Company’s monetary liability under the Agreement to Customer and others, in the aggregate, shall not exceed the Fees paid by Customer for the Service. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 9 apply likewise to Company Associates.
10. Term & Termination
10.1 Term: The Term of Service commences on the Effective Date (as defined in the Order) and continues until terminated as provided herein.
10.2 Termination for Any Reason: Customer may terminate the Agreement at any time, in writing, for any reason effective as stated in the Order.
10.3 Termination for Cause: Notwithstanding any contrary provision in Section 10.2 or the Order, either party may terminate the Agreement for a Term of Service other than monthly for the other’s material breach of the Agreement by written notice. Such notice will specify in detail the nature of the breach and will be effective 30 days (or for non-payment of Fees, 10 days) after such notice, or more if specified in the notice, unless the other party cures the breach within such time.
10.4 Effects of Termination: Upon termination of this Agreement, all rights of Customer to access and use the Website (excluding Customer Content and Customer Data) and all Services will cease, and Customer shall delete, destroy, or return all copies of Company’s confidential information in its possession or control, except that the following provisions will survive any termination of the Agreement: (a) any payment obligations of Customer accruing before termination; and (b) the terms of Sections 4.2, 5, 6, 7.3, 7.4 and 8 through 11 inclusive, except the terms of Section 5.3 shall terminate upon non-payment when due of the applicable Optional Fees stated therein.
11.1 Independent Contractors: The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
11.2 Notices: Company may send notices pursuant to this Agreement to Customer’s email contact points stated in the Order, and such notices will be deemed received 24 hours after they are sent. Customer must send notices pursuant to this Agreement to [email protected] (for technical, administrative support and all other purposes) and such notices will be deemed received 24 hours after they are sent.
11.3 Force Majeure: No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
11.4 Assignment & Successors: Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent, which shall not be unreasonably withheld. Except to the extent forbidden in this Section 11.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
11.5 Severability: To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
11.6 No Waiver: Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.7 Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. This Section 11.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
11.9 Construction: The parties agree that the terms of the Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
11.10 Compliance with U.S. Export Laws: Exports of any products, materials and data exchanged under the Agreement (if any) may be subject to the export laws of the United States including the United States International Traffic in Arms Regulations (the ITAR as defined in 22 CFR 120-130), the Export Administration Regulations (as defined in 15 CFR 730-774), the Export Administration Act, the Trading with the Enemy Act, and the International Emergency Economic Powers Act. Customer agrees to not export, re-export, disclose or transfer any such materials or data directly or indirectly without compliance with these and any other applicable laws and regulations. Customer recognizes that providing, in any manner, information constituting technology and/or technical data (as defined at 15 CFR 772; 22 CFR 120.10) to a foreign person, as defined in the ITAR at 22 CFR 120.16, is an export that may require prior authorization and licensing from the United States Government. Customer agrees and warrants that no regulated product, materials or technical data exchanged between the parties (if any) shall be accessed or provided, in any manner, to foreign persons in the United States or abroad without prior, written authorization as required by the United States Government.