PLEASE READ THIS MASTER SERVICES AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING AND/OR USING (I) THE SOFTWARE, CHAT-BASED IT SUPPORT SYSTEM AND/OR WEB-BASED TICKETING SOLUTION OF MAAVI CORPORATION (“MAAVI”) (SUCH SYSTEMS HEREINAFTER REFERRED TO AS THE “MAAVI Portal”), (II) REMOTE OR ON-SITE SUPPORT PROVIDED BY MAAVI (“SUPPORT ”), (III) HARDWARE PROVIDED BY MAAVI (THE “HARDWARE”), OR (IV) THIRD PARTY SOFTWARE THAT MAAVI RESELLS AND PROVIDES OR OTHERWISE MAKES ACCESSIBLE (THE “PURCHASED THIRD PARTY SOFTWARE”), WITH ITEMS (I) (II) (III)_(IV) COLLECTIVELY REFERRED TO AS (“SERVICES”) . BY SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING THE SERVICES, YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE UPON BY YOU AND MAAVI IN THE APPLICABLE ORDER FORM THROUGH LANGUAGE THAT REFERENCES THIS AGREEMENT AND COMMUNICATES THE PARTIES’ INTENT TO MODIFY ONE OR MORE SPECIFIC PROVISIONS OF THIS AGREEMENT WITH RESPECT TO SUCH ORDER FORM. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1.1 Maavi will provide the Services as provided in the applicable signed Order Form and subject to the terms and conditions of this Agreement. An “Order Form” shall mean (i) any written agreement between Customer and Maavi for the purchase of the Services which incorporates this Agreement or (ii) an order confirmation specifying the Maavi services, Hardware, and/or Purchased Third Party Software selected by the Customer for purchase via the Maavi website. In the event of a discrepancy arising between the Order Form and Agreement, the term outlined in the Order Form shall take precedence.
1.2 Maavi hereby grants Customer for the term of the applicable Order Form a non-exclusive, non-transferable, royalty free, worldwide, limited right and license (without the right to sublicense) to the Maavi Portal. The Maavi Portal is licensed for use solely in connection with Customer’s authorized use of the Maavi Portal and Customer shall not use the Maavi Portal for any other purpose.
1.3 Customer is responsible for providing in a timely manner to Maavi (i) all subscriptions and account credentials and other information necessary for Maavi to access any and all data and information to be monitored, analyzed and/or processed by the Maavi Portal, or otherwise reasonably necessary for Customer’s use of, and Maavi’s provision of, the Services (such information, “Customer Information”), (ii) access to all servers, devices (Customer-owned and those owned by individual end users or other third parties who supply their own devices for use with Customer’s business applications (e.g., under a “BYOD” policy)), storage, software (other than the Client Software), databases, network and communications equipment and ancillary services that connect to, access or otherwise use the Maavi Portal at Customer’s facility(ies), or are otherwise designated by Customer to be managed in connection with the Maavi Portal (collectively, “Customer Systems”). Customer shall ensure that all Customer Systems comply with all specifications provided to Customer by Maavi in writing as of the Start Date specified in the applicable Order Form. Customer represents and warrants that it owns the Customer Systems or has the right to provide Maavi with access to the Customer Systems.
1.4 Maavi will use commercially reasonable efforts to provide Customer with its Services. Customer acknowledges and agrees that the Maavi Portal is subject to occasional downtime for scheduled or emergency maintenance or as a result of any third-party services (including network and hosting services) being unavailable. Maavi will use commercially reasonable efforts to notify Customer of scheduled maintenance downtime with 48 hours’ notice. Customer acknowledges that downtime cannot be predicted or communicated in advance when related to emergency maintenance or unplanned third-party degradation of service.
1.5 In the course of providing the Services, Maavi may install on Customer’s systems third party software under a separate license agreement between the Customer and the owner of the software (“Installed Software”). No rights or licenses with respect to any intellectual property of Installed Software are granted under this Agreement. Customer represents and warrants that it possesses sufficient license rights in and to such Installed Software as may be necessary to authorize and enable the installation and use thereof by Maavi as contemplated by this Agreement and any applicable Order Form.
1.6 Maavi may resell and provide or otherwise make accessible to Customer certain Purchased Third Party Software that is owned by third parties (“Third Party Software Providers”), the use of which may be subject to additional or different terms set forth in the applicable license (“Third Party Licenses”). Customer agrees to be bound by and shall comply with the terms of the applicable Third-Party License as set forth in the applicable Order Form or otherwise provided to or made available to Customer.
1.7 Maavi will facilitate the procurement and provisioning of Hardware on behalf of Customer in accordance with Maavi’s then current hardware and procurement policy. Customer acknowledges that (i) Customer will prepay for any hardware purchased through Maavi, (ii) Customer is responsible for the payment of all shipping, expedited shipping, and courier charges related to the delivery of hardware and will prepay these amounts, and (iii) the time required to procure and provision hardware will vary on factors outside of Maavi’s control related to but not limited to hardware availability, hardware order volume, complexity of provisioning, and the ultimate ship to address of goods. Customer will make hardware decisions with an understanding of items (i), (ii), and (iii) above.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not permit any third party to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Maavi Portal (including any software used to provide the Maavi Portal) or the Client Software (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Maavi Portal or Client Software; or copy (except for archival purposes), rent, lease, pledge, assign, or otherwise transfer or encumber rights to the Maavi Portal or Client Software; post, upload, or otherwise store or transmit through the Maavi Portal any data or other content that is obscene, pornographic, threatening, harmful, or otherwise violates this Agreement or the rights of others; or use the Maavi Portal or Client Software (i) for the benefit of a third party, (ii) other than for Customer’s own internal business purposes, (iii) to build a competitive product or service, (iv) in violation of any applicable laws, rules and regulations, or (v) as a relied upon means for contacting any police, fire, medical, or other emergency services.
2.2 Customer will use reasonable measures to safeguard the security of any credentials issued by Maavi or registered by Customer for access to the Maavi Portal in order to prevent unauthorized access to the Maavi Portal, and shall notify Maavi promptly of any such unauthorized access or use that it becomes aware of. Customer shall be responsible for compliance with this Agreement by any person or entity it allows to access the Maavi Portal on its behalf.
3. CUSTOMER INFORMATION
3.1 If Customer Information includes personally identifiable information of Customer’s employees, agents, contractors and other users of the Customer Systems (collectively, “Customer Users”), Maavi will only access such information as reasonably necessary for its provisioning and delivery of the Services and as otherwise authorized by Customer. In the course of providing the Services, Maavi generally does not require, and therefore, Maavi generally does not request, any personally identifiable information of Customer’s clients that may have been collected by Customer in the course of Customer’s provision of products and services to such clients.
3.2 From time to time, Customer will designate one or more Customer representatives as having the authority to take administrative actions with respect to the Services (“Authorized Customer Users”). Maavi shall be entitled to rely on the instructions and/or other information provided by Authorized Customer Users or otherwise provided through the Maavi account associated with Authorized Customer Users and may communicate with Customer Authorized Users regarding all aspects of the Services, the Customer Systems and Customer Information. Maavi shall have no obligation to evaluate any such instructions or information or to identify or warn against the potential effects of such instructions. Maavi shall not be liable for the results of any actions or inactions carried out in reliance on such instructions or information. It is the sole responsibility of Customer to have in place its own internal policies and procedures regarding Customer Users’ interactions with Maavi, the the Maavi Portal and Support Services.
3.3 Customer represents and warrants to Maavi that (i) it has informed and will at all times keep informed its Customer Users of the fact that their use of the Customer Systems is subject to monitoring (including as contemplated hereunder), (ii) the Customer Information and other information provided to or accessed or used by Maavi for the purposes set forth under this Agreement was lawfully acquired without violating the rights of any parties, and (iii) such access and use will not violate the privacy rights or any other rights (statutory or otherwise) of the Customer Users or other parties. Maavi may (but is not required to) suspend activity hereunder with respect to any actual or alleged breach of the foregoing representations.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Customer retains all rights, title and interests in and to the Customer Information and all data, analyses and other results obtained from the Maavi Portal through its processing of Customer Information or access to the Customer Systems. Notwithstanding the foregoing, Customer acknowledges and agrees that Maavi may (i) use and modify Customer Information and such data, analyses and other results for the purposes of providing the Maavi Portal and Support Services to Customer (ii) collect information and generate Aggregated Anonymous Data (as defined below), (iii) Maavi is and will remain the sole and exclusive owner of all right, title and interest in and to all Aggregated Anonymous Data, including all intellectual property rights related thereto, ,and (iv) freely use and make available Aggregated Anonymous Data for Maavi’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Maavi’s current and future products and services) during the term of this Agreement and thereafter. “Aggregated Anonymous Data” means any of the following information that has been aggregated with other similar information of other Maavi customers, and anonymized so that it does not reveal any personally identifying information or information identifying Customer: (a) information related to how Maavi’s customers are using the Maavi Portal and Support Services (b) information related to the performance of the Maavi Portal or Support Services, including the resolution to and the type, quantity, and cause of inquiries, requests, and/or incidents reported by Customer or Customer Users, and (c) any other information that provides insight into Maavi’s business.
4.2 The Maavi Portal and Support are licensed, not sold. Nothing in this Agreement conveys to Customer any rights of ownership in or related to the Maavi Portal or Support, or any intellectual property rights therein. Except as expressly set forth herein, Maavi alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Maavi Portal and Support, and any improvements and other modifications to the Maavi Portal and Support, and shall be free to use, and to allow others to use, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Maavi Portal and/or Support..
5. CONFIDENTIAL INFORMATION
5.1 “Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for a party in relation to this Agreement whether disclosed in tangible, written, oral or electronic form, that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) all non-public product, pricing and technical information related to the Services shall be treated as Maavi’s Confidential Information and (b) all Customer Information shall be deemed Customer’s Confidential Information for purposes of this Section 5. Confidential Information expressly excludes any information to the extent that a receiving party can demonstrate such information is (a) already known by it without restriction prior to receipt from the disclosing party, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by the receiving party without reference to or use of any of the disclosing party’s Confidential Information.
5.2 Except for the specific rights expressly granted by this Agreement, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without disclosing party’s prior written consent. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. The receiving party shall only disclose Confidential Information to its employees, contractors and agents (“Representatives”) who have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon the disclosing party’s request at any time, the receiving party shall either return all of the disclosing party’s tangible Confidential Information or permanently erase all Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Neither party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such party’s backup, security and/or disaster recovery procedures, provided that such archived copy will (i) eventually be erased or destroyed in the ordinary course of such party’s data processing procedures and (ii) will remain fully subject to the obligations of confidentiality stated herein. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement (including without limitation Order Forms) or otherwise disclose its terms on a confidential basis in connection with any financing transaction or due diligence inquiry.
5.3 Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6. DATA SECURITY
6.1 In providing the Maavi Portal and performing the Support Services, Maavi shall act in accordance with its current information security policy. A copy of Maavi’s information security policy can be referenced here www.maavicorp.com/infosecuritypolicy .
7. PAYMENT OF FEES
7.1 Customer will be responsible for all fees specified in the applicable Order Form(s) (“Fees”). Maavi reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each pre-paid term or at the end of the then-current prepaid renewal term, as applicable, upon sixty (60) days prior notice to Customer (which may be sent by email). All undisputed Fees must be paid in accordance with the payment terms set forth in the Order Form or the Services may be suspended or terminated. If any part of the Fees charged to Customer’s credit card or paid via ACH or similar electronic payment method are declined, reversed, charged back or for any other reason not paid in full via such electronic payment method, Maavi shall have the right, exercisable in its sole discretion and without prejudice to any of its other rights or remedies under this Agreement, to either resubmit such charges to Customer’s form of payment or invoice Customer for the amount of such charges (with payment due within ten (10) days after receipt of invoice), in each case, plus a returned payment charge of $35 or the maximum permitted by applicable law, if less. Customer will inform Maavi of any disputes related to invoice amounts within thirty (30) days of Customer’s receipt of invoice. If Customer does not inform Maavi of any disputes related to invoice amounts within this thirty (30) day period, Customer will no longer have the right to dispute the amount and the amount will remain due and payable to Maavi without exception. Unpaid Fees other than amounts disputed in good faith are subject to a finance charge of 0.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. In the event Maavi must utilize a third-party collection agency to collect fees from Customer when Customer is delinquent in payment, Customer will reimburse Maavi for all fees incurred with the third-party collection agency. Customer shall be responsible for all taxes imposed or based on the Services other than taxes based on Maavi’s net income.
8. TERM; TERMINATION
8.1 Unless terminated earlier as provided below, this Agreement shall govern the Order Form(s) that reference this Agreement and shall remain in effect until the last Order Form expires or terminates hereunder or in accordance with the terms and conditions of the applicable Order Form. Customer acknowledges that the paid user count entered into on each Order Form may not be reduced during the term of the Order Form. In addition, Customer acknowledges that additional paid users added during the term may not be reduced during the remainder of the Order Form term. Each Order Form shall remain in effect from the Start Date specified therein for a period equal to the initial term specified therein. Unless a party cancels an applicable Order Form within thirty (30) days prior to the end of the initial term thereof, Customer will be charged for, and the Order Form will automatically renew, for a subsequent service term equal in duration to the previous service term at then current market pricing.
8.2 Either party may terminate this Agreement upon thirty (30) days’ written notice if the other party breaches any of the terms or conditions of this Agreement and fails to remedy such breach within such 30-day period. Such written notice must identify the alleged breaches in detail reasonably sufficient to allow the recipient to investigate and be provided an opportunity to cure. Customer will pay all undisputed, properly invoiced amounts for the Services up to and including the last day of the term of each Order Form. Maavi may temporarily suspend access to the Services and/or remove Customer Information from the Maavi Portal if Maavi in good faith believes that, as part of using the Services, Customer has violated a law. Maavi will use commercially reasonable attempts to contact Customer in advance of suspension of service as described in this section 8.2
8.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, intellectual property ownership, warranty disclaimers, indemnification obligations, and limitations of liability.
9. LIMITED WARRANTY AND DISCLAIMER
9.1 Maavi warrants that the Maavi Portal shall perform in substantial accordance with any and all official specifications and similar documentation provided to Customer by Maavi for a period of ninety (90) days after initial delivery of the Maavi Portal to Customer. In the event the Maavi Portal does not substantially conform to such specifications or documentation, Customer shall provide written notice of non-conformance to Maavi and Maavi shall, at its option and as its sole obligation and as Maavi’s sole liability and Customer’s exclusive remedy, repair the affected portion of the Maavi Portal at no additional charge, or, if it determines that the foregoing option is not commercially practical, terminate this Agreement with respect to the Maavi Portal and issue a refund for any prepaid amounts for unused portions of the term. To the extent it is permitted to do so, Maavi will pass through to Customer any third-party warranties in respect of the Hardware and/or Purchased Third Party Software as applicable.
9.2 MAAVI DOES NOT WARRANT THAT THE MAAVI Portal, SUPPORT SERVICES, HARDWARE, OR PURCHASED THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. OTHER THAN THE EXPRESS WARRANTY SET FORTH IN SECTION 9.1, THE SERVICES ARE PROVIDED “AS IS” AND MAAVI DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, MAAVI (AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES) AND CUSTOMER SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B) FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER TO MAAVI FOR THE MAAVI PORTAL AND SUPPORT SERVICES IN THE 12 MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH DAMAGES. IN ADDITION, NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL MAAVI (OR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY.
10.2 THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO (A) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, (B) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 11, OR (C) TO ANY BREACH OF SECTIONS 1.6 AND 1.7 (THIRD PARTY LICENSE OBLIGATIONS), SECTION 4 (INTELLECTUAL PROPERTY), OR SECTION 5 (CONFIDENTIALITY).
11.1 Maavi will defend Customer and Customer’s officers, directors, employees, agents and representatives from all third party claims that the Services provided by Maavi, when used and operated in accordance with the terms and conditions of this Agreement, infringes any intellectual property rights of such third party. Maavi shall have sole control over the defense and/or settlement of any claim subject to indemnification by Maavi and will pay all losses, damages, awards, penalties and/or settlement amounts finally awarded to such third party by a court of competent jurisdiction, or agreed to in a monetary settlement, with respect to any such claims; provided, however, that Maavi will not settle any such claim without the prior written consent of the indemnified party (such consent not to be unreasonably withheld, conditioned or delayed) unless the settlement requires only the payment of money and includes a full and unconditional release of all liability. Customer shall promptly notify Maavi of any such claim and provide Maavi with reasonable assistance in connection with any such claim. If the Client Software or Maavi Portal becomes or, in Maavi's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Maavi may, at its option (1) obtain for Customer the right to continue using the Client Software or Maavi Portal or (2) replace or modify such Client Software or Maavi Portal so that it becomes non
infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Maavi, then it may (3) terminate this Agreement upon written notice to Customer and issue a refund for any prepaid amounts for unused portions of the term.
11.2 Maavi shall have no liability or obligation to Customer under Section 11.1 with respect to any claim based upon (i) any use of the Services not strictly in accordance with this Agreement, (ii) use of the Services in an application or environment or on a Portal or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Services not created by Maavi, (iv) that portion of the Services which implements Customer's requirements, (v) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Services after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which Customer or any of its affiliates has an interest.
11.3 Customer will defend Maavi and Maavi’s officers, directors, employees, agents and representatives from all third party claims that arise in connection with any breaches of Sections 1.5, 1.6 and 3.3. Customer will pay all losses, damages, awards, penalties and/or settlement amounts finally awarded to such third party by a court of competent jurisdiction, or agreed to in a monetary settlement, with respect to any such claims. Customer shall have sole control over the defense and/or settlement of any claim subject to indemnification by Customer; provided, however, that Customer will not settle any such claim without the prior written consent of the indemnified party (such consent not to be unreasonably withheld, conditioned or delayed) unless the settlement requires only the payment of money and includes a full and unconditional release of all liability. Maavi shall promptly notify Customer of any such claim and provide Customer with reasonable assistance in connection with any such claim.
11.4 Neither party shall have any responsibility to defend or indemnify the other party for any claims under Section 11.1 or 11.3, as the case may be, to the extent the claim otherwise subject to indemnification results from the gross negligence, willful misconduct or breach of this Agreement by the indemnified party.
12.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Both parties agree that this Agreement (including the Order Forms) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise expressly provided herein. Neither Maavi or Customer shall be held liable for failure of or delay of performance under this agreement if said failure or delay is due to a force majeure event such as but not limited to an act of God, natural disaster, was, an act of terrorism, action of foreign adversaries, a labor strike, government sanction, or failure of utility services.
12.2 This Agreement is not assignable, transferable or sublicensable by a Party except with prior written consent of the other Party, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Maavi may also subcontract performance of any Support. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party shall have any authority of any kind to bind the other party in any respect whatsoever.
12.3 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.4 This Agreement shall be governed by the laws of the United States and the State of California without regard to its conflict of law provisions. Any disputes arising out of this Agreement shall be brought exclusively in the courts located in Santa Clara County, California. Solely with respect to breaches of Section 5 (Confidentiality), each party shall have the right to pursue injunctive or other equitable relief at any time from any court of competent jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
12.5 Notwithstanding the provisions set forth in Section 5, Maavi is permitted to disclose that Customer is one of its customers to any third party at its sole discretion (including without limitation by including Customer’s name and logo in customer lists that may be made available on Maavi’s website or in Maavi’s marketing materials).
12.6 Maavi agrees to maintain in full force and effect during the term of any Order Form insurance as is normal and customary in Maavi’s industry generally for parties similarly situated