Terms and conditions: By this agreement, the Client agrees to subscribe to Leap’s three-and six consulting service, and employs Leap72 to perform the services in accordance with the terms and conditions set forth in the service description herein.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes hereof, means direct or indirect ownership or control of more than50% of the voting interests of the subject entity.
“Authorized Contractors” means independent contractors, licensors or subcontractors that assist Leap72 in the delivery of the Services.
"Client Data" means all data, records, files, images, graphics, audio,video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted or otherwise used with the Subscription Services or Engagements.
“Data Center Region” refers to the geographic region in which the Client Data is housed.
“Deliverable” means any work product, ideas, concepts, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed ordelivered in the performance of Professional Services.
“Documentation” means Leap72’s product guides and other end user documentation for the Subscription Services available online and through the help feature of the Subscription Services, as may be updated by Leap72 from time to reflect the then-current Subscription Services.
“Order” or “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Leap72 and Client from time to time, including any addenda and supplements thereto. Client Affiliates may purchase Services subject to this Agreement by executing Orders hereunder.
“Professional Services” means fee-based migration, implementation, training or consulting services that Leap72 performs as described in an Order or Engagements, but excluding Support Services.
"Services" means the Subscription Services and Professional Services that Client may purchase under an Order or Engagements.
“Consulting Services” or “Engagements” means a proposal of work agree to and entered into and executed by the parties describing Professional Consulting Services to be provided by Leap72 to Client.
“Subscription Services” means the cloud platform or consulting expertise made available by Leap72 to Client, the trade secrets or original content made available by Leap72 to Client in person or the internet via the applicable Client logins and/or associated Support Services, as ordered by Client under an Order, as applicable.
“Support Services” means the level of support services purchased by Client pursuant to an Order.
“Subscription Term” means the term of Subscription Services purchased by Client which shall commence on the start date specified in the applicable Order and continue for the subscription term specified therein and any renewals thereto.
“Trial Services” means any Leap72 product, service or functionality that may be made available by Leap72 to Client to try at Client’s option, at no additional charge, and which is designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “evaluation,” or by a similar designation.
"Third Party Marketplace" means any non-Leap72 products or services made available as an accommodation through Leap72’s website, which are subject to change during the Subscription Term.
2. Subscription Services
This subscription and services agreement (the “Agreement”), the relevant terms of the Documentation, and any executed Orders and/or Engagement(s) between the parties, are incorporated herein and shall govern the provision of the Services. Client and its Affiliates may place orders under this Agreement by submitting separate Order(s) and Engagement(s). This Agreement shall commence on the Effective Date of Client’s first executed Order or Engagement (“Effective Date”) and will continue until otherwise terminated in accordance with Section 12 below.
2.1. Provision of Subscription Services; Leap72 will make the Subscription Services available to Client pursuant to this Agreement, the online Documentation and the relevant Order Form during the Subscription Term, solely for Client’s internal business purposes. Leap72’s Affiliates and its Authorized Contractors may perform certain aspects of the Services provided that Leap72 remain fully liable for same and responsible for ensuring that any of Leap72’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Client's use of the Subscription Services includes the right to access all functionality available in the Subscription Services during the Subscription Term. So long as Leap72 does not materially degrade the functionality, as described in the online Documentation, of the Subscription Services during the applicable Subscription Term (i) Leap72 may modify the systems and environment used to provide the Subscription Services to reflect changes in technology, industry practices and patterns of system use, and (ii) update the online Documentation accordingly. Subsequent updates, upgrades, enhancements to the Subscription Services made generally available to all subscribing clients will be made available to Client at no additional charge, but the purchase of Subscription Services is not contingent on the delivery of any future functionality or features, or new services. New features, functionality or enhancements to the Subscription Services may be marketed separately by Leap72 and may require the payment of additional fees. Leap72 will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.
2.2. Trial Services. If Client registers or accepts an invitation for Trial Services, including through Leap72's website, or executes an Order for the same, Leap72 will make such Trial Services available to Client on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Client registered to use the applicable Trial Services, or (b) the end date specified in the applicable Order. Trial Services are provided for evaluation purposes and not for production use. Client shall have sole responsibility and Leap72 assumes no liability for any Client Data that Client may choose to upload on the Trial Services. Trial Services may contain bugs or errors, and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. Leap72 may, in its sole discretion, discontinue Trial Services at any time
2.3. Third Party Marketplace. As part of the Subscription Services, Leap72 may provide access to the Third Party Marketplace solely as an accommodation to Client. Client may choose to use any, all or none of the offerings on such Third Party Marketplace at its sole discretion. Client’s use of any offering on the Third Party Marketplace is subject to the applicable provider’s terms and conditions and any such terms and conditions associated with such use are solely between Client and such third party provider. Leap72 does not provide any Support Services for Third Party Marketplace products and services.
3. SECURITY AND DATA PRIVACY
3.1. Security and Internal Controls. In accordance with Leap72's Security Annex incorporated herein by reference, Leap72 shall (i) maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for protection of the security and integrity of the Subscription Services, and of the Client Data contained within the Subscription Services, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards, (ii) access and use the Client Data solely to perform its obligations in accordance with the terms of this Agreement, and (iii) perform periodic testing by internally by trained staff educated about Google Cloud. In no event during the Subscription Term shall Leap72 materially diminish the protections provided by the controls set forth in agreement.
3.3. Data Center Region. Client may select the Data Center Region from those available for the applicable Subscription Services. Leap72 will not move the selected Data Center Region without Client’s written consent or unless required to comply with the law or requests of a governmental or regulatory body (including subpoenas or court orders). Client consents to Leap72's storage of Client Data in, and transfer of Client Data into, the Data Center Region Client selects.
3.4. Compliance with Law. Leap72 will comply with all laws applicable to the provision of the Subscription Services, including applicable security breach notification laws, but not including any laws applicable to the Client’s industry that is not generally applicable to information technology services providers.
4. CLIENT OBLIGATIONS
4.1. Responsibilities. Client shall (i) access and use the Services in accordance with this Agreement, applicable laws and government regulations and Leap72's Acceptable Use Policy incorporated herein by reference, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Leap72 promptly of any such unauthorized access or use, and (iii) take commercially reasonable steps necessary to ensure the security and compliance of the Client Applications.
4.2. Client Data. Client is responsible for its legal and regulatory compliance in its use of any Subscription Services and shall make Leap72 aware of any Client Data processed, stored or transmitted through the Subscription Services for which regulations other than those set forth in the Security Annex apply. If, in the course of providing Subscription Services, Leap72 agrees in writing to process such Client Data and Client has subscribed to any applicable Subscription Services, Leap72 shall process it only as permitted under this Agreement and in compliance with data protection legislation to which Leap72 is subject as a service provider.
4.3 Restrictions. Client shall not (a) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription Services; (b) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (c) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services; or (d) disclose any benchmark or performance tests of the Subscription Services.
5. PROFESSIONAL SERVICES
5.1. Standard Professional Services. A description of Leap72’s standard Professional Services offerings, including training, and workshops, may be found in the Documentation. Standard Professional Services may be identified in an Order without the need for issuance of an Engagement.
5.2. Other Professional Services. For any non-standard Professional Services, Leap72 will provide Client with Professional Services as set forth in the applicable Engagement. Each Engagement will include, at a minimum (i) a description of the Professional Services and any Deliverable to be delivered to Client; (ii) the scope of Professional Services; (iii) the schedule for the provision of such Professional Services; and (iv) the applicable fees and payment terms for such Professional Services, if not specified elsewhere.
5.3. Change Orders. Changes to an Engagement or Order Form will require, and shall become effective only when, fully documented in a written change order (each a “Change Order”) signed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Change Orders shall be deemed part of, and subject to, this Agreement.
5.4. Designated Contact and Cooperation. Each party will designate in each ENGAGEMENT an individual who will be the primary point of contact between the parties for all matters relating to the Professional Services to be performed thereunder. Client will cooperate with Leap72, will provide Leap72 with accurate and complete information, will provide Leap72 with such assistance and access as Leap72 may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the applicableEngagement. If applicable, while on Client premises for Professional Services, Leap72 personnel shall comply with reasonable Client rules and regulations regarding safety, conduct, and security made known to Leap72.
6. FEES AND PAYMENT
6.1. Fees. Client shall pay all fees specified in each Order and Engagement and any applicable additional fees if Client exceeds the allotted capacity or other applicable limits specified in the Order. Except as otherwise specified herein or in an Order or Engagement (i) fees are payable in United States dollars, (ii) fees are based on Services purchased, regardless of usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, (iv) all Services shall be deemed accepted upon delivery, and (v) the Subscription Services purchased cannot be decreased during the relevant Subscription Term. Client shall reimburse Leap72 for out-of-pocket expenses incurred by Leap72 in connection with its performance of Services. Leap72 will provide Client with reasonably detailed invoices for such expenses. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
6.2. Invoicing and Payment. Unless otherwise specified in an Order, fees for Subscription Services specified in an Order will be invoiced annually in advance, fees for overages will be calculated and invoiced monthly in arrears, and, unless otherwise set forth in an Engagement, all fees and expenses for standard Professional Servces as described in Section 5.1 shall be invoiced upon completion, and all fees and expenses for non-standard Professional Services as described in 5.2 will be invoiced monthly in arrears on a time and materials basis. Except as otherwise stated in the applicable Order or Engagement, Client agrees to pay all invoiced amounts within thirty (30) days of invoice date. If Client fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law (i) Leap72 reserves the right to suspend the Subscription Services upon thirty (30) days notice, until such amounts are paid in full, and (ii) Leap72 will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Client pays all amounts due; provided that Leap72 will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Client is cooperating diligently to resolve the issue.
6.3. Taxes. Fees for Services exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any product or Services covered hereby. Unless Client provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Client is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, "Taxes") arising from Leap72’s provision of the Services hereunder, except any taxes assessed on Leap72’s net income. If Leap72 is required to directly pay or collect Taxes related to Client’s use or receipt of the Services hereunder, Client agrees to promptly reimburse Leap72 for any amounts paid by Leap72.
7. PROPRIETARY RIGHTS
7.1. Subscription Services. Except for the rights expressly granted under this Agreement,Leap72 and its licensors retain all right, title and interest in and to the Subscription Services and Documentation, including all related intellectual property rights therein. Leap72 reserves all rights in and to the Subscription Services and Documentation not expressly granted to Client under this Agreement. Client will not delete or in any manner alter the copyright, trademark, and other proprietary notices ofLeap72.
7.2. Client Data and Client Applications. As between Client And Leap72, Client is and will remain the sole and exclusive owner of all right, title and interest to all Client Data and Client Applications, including any intellectual property rights therein. Client hereby grants Leap72, its Affiliates and applicable Authorized Contractors all necessary rights to host, use, process, store, display and transmit Client Data and Client Applications solely as necessary for Leap72 to provide the Services in accordance with this Agreement. Subject to the limited licenses granted Herein, Leap72 acquires no right, title or interest from Client or Client licensors hereunder in or to Client Data and Client Applications, including any intellectual property rights therein.
7.3. Deliverables. Excluding any property that constitutes Outside Property, any Deliverables shall be the sole property of Client upon Client’s payment in full of all associated Professional Services fees. Leap72 shall execute and, at Client’s written request, require its personnel to execute any document that may be necessary or desirable to establish or perfect Client’s rights to the ownership of such Deliverables. For purposes of this Agreement, “Outside Property” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user-interfaces, templates, documentation, software, hardware, modules, development tools and other tangible or intangible technical material or information that Leap72 possesses or owns prior to the commencement of Professional Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property. Outside Property shall also include any enhancements, modifications or derivatives made by Leap72 to the Outside Property while performing Professional Services hereunder, and any software, modules, routines or algorithms which are developed by Leap72 during the term in providing the Professional Services to Client, provided such software, modules, routines or algorithms have general application to work performed by Leap72 for its other Clients and do not include any content that is specific to Client or which, directly or indirectly, incorporate or disclose Client’s Confidential Information.
7.4. Outside Property License. To the extent that Leap72 incorporates any Outside Property into any Deliverables, then Leap72 hereby grants Client a limited, royalty-free, non-exclusive, non-transferable (subject to Section 14.11), without right to sublicense, license to use such Outside Property delivered to Client solely as necessary for and in conjunction with Client's use of the Deliverables.
8.1. Definition of Confidential Information. "Confidential Information" means all confidential or proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions of this Agreement (including pricing and other terms set forth in all Order Forms and/or ENGAGEMENTs hereunder), related benchmark or similar test results, other technology and technical information, security information, security audit reports, and business and marketing plans, except that Leap72 may reference and use Client’s name, logos and the nature of the Services provided hereunder in Leap72’s business development and marketing Efforts.
8.2. Exceptions. Confidential Information shall not include information that (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
8.3. Protection of Confidential Information. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (i) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and (ii) limit access to Confidential Information of Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have a duty or obligation of confidentiality no less stringent than that set forth herein.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law,regulation or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party's cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Leap72 Representations & Warranties. Leap72 represents and warrants that (i) Leap72 has the legal authority to enter into this Agreement, (ii) the Subscription Services will materially conform with the relevant Documentation, (iii) the functionality and security of the Subscription Services will not be materially decreased during a Subscription Term, and (iv) Professional Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards.
9.2. Remedies. For any failure of any Subscription Services, Services, as applicable, to conform to their respective warranties, Leap72’s liability and Client’s sole and exclusive remedy shall be for Leap72, in the case of a breach of the warranty set forth in Section 9.1 (ii), (iii), and/or (iv), to use commercially reasonable efforts to correct such failure; or, in the case of a breach of the warranty set forth in Section 9.1 (iv) to re-perform the affected Professional Services. If the foregoing remedies are not commercially practicable, Leap72 may, in its sole discretion, terminate the applicable Order or ENGAGEMENT upon providing Client with written notice thereof, and, as Client’s sole and exclusive remedy, refund to Client (a) in the case of breach of the warranty set forth in Section 9.1(ii) or (iii), any Subscription Services fees paid by Client with respect to the unexpired portion of the current Subscription Term for the non-conforming Subscription Services; or (b) in the case of breach of the warranty set forth in Section 9.1(iv), any fees paid by Client for the portion of Professional Services giving rise to the breach.
9.3. Client Representations & Warranties. Client represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and Regulations.
9.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LEAP72 MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND LEAP72 HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Leap72. Leap72 shall indemnify, defend and hold Client harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against Client by a third party alleging that the use of the Subscription Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a "Claim Against Client"); provided that Client (a) promptly gives Leap72 written notice of the Claim Against Client; (b) gives Leap72 sole control of the defense and settlement of the Claim Against Client (provided that Leap72 may not settle any Claim Against Client unless the settlement unconditionally releases Client of all liability); and (c) provides to Leap72 all reasonable assistance, at Leap72’s expense. In the event of a Claim Against Client, or if Leap72 reasonably believes the Subscription Services may infringe or misappropriate, Leap72 may in Leap72’s sole discretion and at no cost to Client (i) modify the Subscription Services so that they no longer infringe or misappropriate, without breaching Leap72’s warranties hereunder, (ii) obtain a license for Client’s continued use of Subscription Services in accordance with this Agreement, or (iii) terminate Client’s subscriptions for such Subscription Services and refund to Client any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Notwithstanding the foregoing, Leap72 shall have no obligation to indemnify, defend, or hold Client harmless from any Claim Against Client to the extent it arises from (i) Client Data or Client Applications, (ii) use by Client after notice by Leap72 to discontinue use of all or a portion of the Subscription Services, (iii) use of Services by Client in combination with equipment or software not supplied by Leap72 where the Service itself would not be infringing, (iv) or Client’s breach of this Agreement.
10.2. Indemnification by Client. Client shall indemnify, defend and hold Leap72 harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Leap72 by a third party alleging that Client Data or Client Application violates applicable law or a third party’s rights (a "Claim Against Leap72"); provided that Leap72 (a) promptly gives Client written notice of the Claim Against Leap72; (b) gives Client sole control of the defense and settlement of the Claim Against Leap72 (provided that Client may not settle any Claim Against Leap72 unless the settlement unconditionally releases Leap72 of all liability); and (c) provides to Client all reasonable assistance, at Client’s expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. OTHER THAN EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 10 (MUTUAL INDEMNIFICATION), NEITHER PARTY'S TOTAL AGGREGATE LIABILITY RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT FOR THOSE SERVICES GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER FORM AND/OR ENGAGEMENT IN THE 12 MONTHS PRECEDING THE APPLICABLE INCIDENT.
11.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the Effective Date and continues until otherwise terminated, by written agreement of the parties, in accordance with Section 12.3 or upon the expiration of the last Subscription Term or renewal thereof.
12.2. Renewal of Subscription Services. Except as otherwise specified in the applicable Order, the Subscription Services shall automatically renew for successive one-year periods, unless and until terminated by either party in accordance herewith or unless either party provides written notice of non-renewal to the other party at least 30 days prior to the end of the then-current Subscription Term. Leap72 may increase pricing applicable to the renewal of any then-current Subscription Term by providing Client with notice thereof, including by email, at least 45 days prior to the end of such term.
12.3. Termination. A party may terminate this Agreement (or, at such party’s option, the individual Order Forms or ENGAGEMENTs affected by the applicable breach), for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such same 30 day period, or (ii) automatically if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of an Order or ENGAGEMENT for cause by Client and upon Client’s written request, Leap72 shall refund, on a pro rata basis, any fees paid thereunder that cover the remainder of the applicable
Subscription Term after the effective date of termination. Upon termination of an Order or ENGAGEMENT for cause by Leap72, all amounts owed by Client thereunder shall become due and payable. In no event shall any termination relieve Client of the obligation to pay all fees payable to Leap72 for the period prior to the effective date of termination.
12.4. Data Portability and Deletion. Upon request made by Client within 7 days of termination or expiration of the Subscription Services, Leap72 will make Client Data and Client Applications available to Client for export or download as provided in the Documentation. At the end of such 7 day period, Leap72 will delete or otherwise render inaccessible any Client Data and Client Applications, unless legally prohibited. Leap72 has no obligation to retain the Client Data for Client purposes after this 7 day post termination period.
12.5. Survival. Section 7 (Proprietary Rights), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund upon Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address set forth in the applicable Order Form or ENGAGEMENT, as such party
may update such information from time to time, with, in the case of notices sent by Client, a copy sent to the Leap72 Legal Department at the address first set forth above. Billing-related notices to Client will be addressed tothe relevant billing contact designated by Client on the applicable Order.
13.2. Governing Law and Jurisdiction. If Client is entering into this Agreement from the UK or a European Union member country, then this Agreement is governed by the laws of England and subject to the exclusive jurisdiction of the courts of England and Wales. If Client is entering into
this Agreement from Australia, then this Agreement is governed by the laws of New South Wales and subject to the exclusive jurisdiction of the courts of Sydney. Otherwise, this Agreement shall be governed and construed in accordance with the laws of the Commonwealth of the state of Texas,
excluding its conflicts of law rules. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record of the Commonwealth of Texas in Harris County or the United States District Court. Each party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or
legal proceeding in such court. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights might cause the other party to suffer irreparable
harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in any state, federal, or national court of competent jurisdiction, without bond and without the
necessity of showing actual monetary damages. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to the Agreement.
13.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
14.1. Import and Export Compliance. Each party shall comply with all applicable import, re-import, export and re-export control laws, treaties, agreements, and regulations. Export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (EAR), the Department of State International Traffic in Arms Regulations (ITAR), and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control (OFAC), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Each party represents that it is not named on any U.S. government denied-party list. Clientshall not permit users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.
14.3. Federal Government End Use Provisions (only appicalbe for the U.S.).
If the Services are being or have been acquired with U.S. Federal Government funds, or Client is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services, or any related documentation of any kind, including technical data, manuals or Leap72 Property is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995), as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the software and Services with only those rights set forth in this Agreement and any amendment hereto.
14.4. Subscription Service Analyses. Leap72 may (i) compile statistical and other information related to the performance, operation and use of the Subscription Services, and (ii) use, and share data from the Subscription Services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as ‘Subscription Service Analyses”). Subscription Service Analyses will not incorporate any information, including Client Data, in a form that could serve to identify Client or an individual. Leap72 retains all intellectual property rights in Subscription Service Analyses.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Non-Solicitation. Client agrees that during the term of each Order Form and/or ENGAGEMENT and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed by Leap72 who participated in the performance of Services under the applicable Order Form and/or ENGAGEMENT. Nothing in this clause shall be construed to prohibit individual Leap72 employees from responding to public employment advertisements, postings or job fairs of Client, provided such response is not prompted by Client intentionally circumventing the restrictions of this Section.
14.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.8. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.9. Force Majeure. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.
14.10. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.11. Assignment. Neither party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party.Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and ENGAGEMENTS), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.12. Morals Clause. The Client shall not commit any act or do any thing which might reasonably be considered: (i) to be immoral, deceptive, scandalous or obscene; or (ii) to injure, tarnish, damage or otherwise negatively affect the reputation and goodwill associated with the Leap72, it’s partners or afflilates.
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, any Order Form or ENGAGEMENT, the terms of such Order Form or ENGAGEMENT shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a PO, payment system, other order documentation or otherwise (excluding Order Forms and/or ENGAGEMENTS) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.