Software As A Service Terms of Service
IMPORTANT - PLEASE READ CAREFULLY: BY UTILIZING BIZZUKA SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This software as a service subscription agreement (the "Agreement") governs your use of the System (as defined below) and any related services provided by Bizzuka, Inc, with a principal business address at 105 Chapel Dr., Lafayette, Louisiana. You are referred to as "Customer" in this Agreement. If you use the System then you have agreed to these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to Bizzuka you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use the System.
1. 1. Considerations Regarding the Service
"Customer Data” means the data and information (i) loaded into the Software by or on behalf of Customer in the course of Customer’s use of the Software, (ii) loaded by Bizzuka into the Software at Customer’s direction, or (iii) loaded into the Software via an interface to a third party which was established at Customer’s direction.
"Documentation” means any published or electronic user guides, training, or operating manuals that Bizzuka may make generally available to its customers for use with the Software and as updated by Bizzuka from time to time.
"Intended Purpose”means use of the Software.
"Licensed Materials” means the Software and the Documentation.
"Software” means the current version of WordPress, the Theme used in the Customer's website, the Plugins used in the Customer's website, any Bizzuka supported Marketing Automation Software licensed through Bizzuka by the Customer, and/or any Custom Software Applications expressly built for the Customer that are outlined and described in the Customer's Service Plan, including bug fixes and updates thereto.
1.2 Access. Subject to the terms of this Agreement and each of the executed Service Plans, Bizzuka hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right for Customer to access and use the Software on a Software-as-a-Service ("SaaS”) basis and the Service for Customer’s internal use in accordance with the Documentation.
1.3 Credentials. Customer shall ensure that the Service is accessed and used only by Customer or Customer Users with appropriate Credentials. Customer shall be responsible for (i) issuing or providing information to Bizzuka to issue Credentials and (ii) managing Credentials pursuant to applicable minimum access policies or requirements maintaining the confidentiality of Credentials used to access the Service. "Credentials” means a login name and password provided to Customer or a Customer User. "Customer Users” means the staff members and representatives of Customer who use the Service.
1.4 Exclusions. Bizzuka shall not be obligated to provide access to the Service for any other programs, workflows, process management or functionality not explicitly identified in a Service Plan or covered by the Intended Purpose. Customer agrees that any use other than the Intended Purpose would require additional consideration and the prior written approval of Bizzuka.
1.5 Restrictions; Prohibited Actions. Customer shall not: (a) sell, rent, lease, loan, sublicense, disseminate, assign, transfer, hypothecate, grant a security interest in or otherwise provide the Service, Software or Documentation to third parties, make the Service, Software or Documentation available for use by third parties or use the Service, Software or Documentation for the benefit of any third party; (b) copy, reproduce, modify, adapt, translate or create any derivative works from the Service, Software or Documentation; (c) disassemble, decompile, reverse engineer, or make any other attempt by any means to discover or obtain the source code for, the Software; (d) remove, alter, obscure or tamper with any trademark, copyright or other proprietary markings or notices affixed to or contained within the Service, Software or Documentation; (e) take any action that may adversely impact or impair Bizzuka’s or its Suppliers’ rights, title and interest in the Service, Software or Documentation; or (f) encourage or permit any other third party to engage in any of the foregoing. Customer shall be responsible for ensuring that all Customer Users comply with the terms of this Agreement, and Customer shall be liable for any breach by any Customer User of the restrictions or other terms of this Agreement. Customer shall not cause or permit the installation or use of any programs or device that attempts to interface directly to the Software source code or that attempts to read the Software’s proprietary data files without Bizzuka’s express prior written authorization. "Suppliers” means all third party licensors and other suppliers to Bizzuka that provide any portion of the Software or Documentation or support Bizzuka’s provision of the Service.
1.6 Ownership Rights Reserved. Customer acknowledges and agrees that all Intellectual Property Rights, including without limitation all worldwide right, title and interest in and to the Service, Software, Documentation and related materials (including all modifications, alterations and enhancements thereto and derivative works thereof) and all copies thereof, including all trademarks, service marks, patents, copyrights, Trade Secrets, designs, algorithms and all other intellectual property, industrial property and proprietary rights in or related to the Service, Software and Documentation, are and shall remain the exclusive property of Bizzuka and its Suppliers. "Intellectual Property Rights” means any and all rights with respect to the Software, Service, Documentation, and related services and materials arising from or under any of the following, whether protected, created or arising under the laws of the United States of America or any other jurisdiction in the world: patents, copyrights, trademarks and service marks, trade dress, trade names, Trade Secret and know-how and any other intellectual property or proprietary rights of any nature, by whatever name or term known or however designated. "Trade Secrets” means information that derives actual or potential economic value because it is not generally known to, and by proper means not readily ascertainable by, others who can obtain economic value from its disclosure or use; and is the subject of commercially reasonable efforts to maintain its secrecy.
2. Customer Data & Privacy
2.1 System Administrator; User Access. Customer shall designate one or more System Administrators. System Administrators shall be responsible for managing User access, including adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share a password or user name. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorized users.
2.2 Customer Data Unless it receives Customer’s prior written consent, Bizzuka: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Bizzuka’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Bizzuka may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Bizzuka shall 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.
2.4 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 System, Customer assumes such risk. Bizzuka offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
2.5 Data Accuracy. Bizzuka shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
2.6 Data Deletion. Bizzuka may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 90 days or more.
3. Limited Warranty
3.1 From Company. Bizzuka represents and warrants that it is the owner of the System and of each and every component thereof, 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. Bizzuka’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Bizzuka. In the event of a breach of the warranty in this Section 3.1, Bizzuka, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Bizzuka’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 3.1 and for potential or actual intellectual property infringement by the System.
3.2 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 this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
3.3 Performance. Bizzuka will use commercially reasonable efforts to correct any errors in the Software that are deemed material by Bizzuka and of which Bizzuka has been notified by Customer in a timely manner. This warranty shall not apply if: (a) the Service or Software is not used in accordance with this Agreement or the Documentation or is used in a manner for which it is not designed, contemplated or specifically recommended by Bizzuka; (b) the Service or Software is adapted, modified, altered or tampered with by anyone other than Bizzuka or its authorized agents; (c) the Service or Software is used in conjunction with any programs, hardware or other products not specified in writing by Bizzuka for use with the Software; or (d) the error is caused by Customer, the Internet, or any third party hardware, programs or other products. Customer acknowledges and agrees that this Section 3.1 sets forth Bizzuka’s exclusive liability, and Customer’s exclusive remedy, for any breach of the warranty set forth herein.
3.4 Computer Viruses. Bizzuka represents and warrants that to its knowledge the Software does not contain any computer code designed to disrupt, disable, harm, or otherwise impede the operation thereof or of any associated software, firmware, hardware, computer system, or network (sometimes referred to as "viruses” or "worms”) other than license management code that enables Bizzuka to disable the Software upon Customer’s no longer having a valid license hereunder.
3.5 Warranty Disclaimers. Except to the extent set forth in the Software as a Service Agreement and in this Section 3 above and Section 7.1 to follow, CUSTOMER ACCEPTS THE SYSTEM "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) Bizzuka HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY EXCEPT AS STATED IN SECTION 7.1; (b) Bizzuka DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) Bizzuka DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
4.1 Confidentiality Obligations. Neither Party shall use or disclose, or permit others to use or disclose, any of the other Party’s Proprietary Information without the disclosing Party’s prior written consent or except as expressly authorized hereunder or as required for each party to perform its obligations hereunder. Each Party shall safeguard the confidentiality of the Proprietary Information including, at a minimum, taking those precautions used by the receiving Party to protect its own Proprietary Information of a similar nature, which in no event shall be less than a reasonable degree of care. The receiving Party shall restrict the possession, knowledge and use of Proprietary Information to its employees, agents and subcontractors who have a need to know for purposes of this Agreement and are bound by confidentiality obligations no less stringent than those contained herein. Before disposing of any media containing the Documentation or other Proprietary Information of Bizzuka, Customer agrees to take all necessary steps to securely destroy or erase all Documentation and other Proprietary Information of Bizzuka and its Suppliers contained in such media. Before disposing of any media containing the Documentation or other Proprietary Information of Customer, Bizzuka agrees to contact Customer to offer the return of said media or, if so instructed by Customer in writing, to take all necessary steps to securely destroy or erase all Documentation and other Proprietary Information of Customer contained in such media. The receiving Party may disclose Proprietary Information as required by law, regulation or judicial process, in which case, the receiving Party will use reasonable efforts under the circumstances to disclose only such information as is required and to seek confidential treatment for any Proprietary Information so disclosed. The receiving Party promptly shall notify the disclosing Party of any facts known to such Party regarding any unauthorized disclosure or use of the Proprietary Information. All Proprietary Information shall remain the exclusive property of the disclosing Party. The terms of this Section 4.1 shall survive termination or expiration of this Agreement. "Confidential Information” means non-public information of value to its owner and that is the subject of its owner’s reasonable efforts to maintain confidentiality thereof, including without limitation the terms of this Agreement. Confidential Information shall not include any information that the receiving Party can demonstrate: (a) was in the receiving Party’s possession at the time of disclosure by the disclosing Party without confidentiality obligation; (b) becomes known to the receiving Party through disclosure by sources other than the disclosing Party who have the legal right to disclose such Proprietary Information without confidentiality obligation; or (c) is independently developed by or for the receiving Party without reference to or reliance upon the disclosing Party’s Proprietary Information. The placement of a copyright notice on the Software or Documentation shall not constitute publication or otherwise impair the confidential nature thereof. "Proprietary Information” is, collectively and without regard to form, any third party information that either party has agreed to treat as confidential, and Confidential Information and Trade Secrets. Without limiting the generality of the foregoing, Customer acknowledges that the Service, Software and Documentation, including the ideas, methods of operation, architecture, processes and know-how embodied in such items, constitute Proprietary Information of Bizzuka or its licensors. Each party immediately shall report to the other party any attempt by any person of which such party has knowledge or becomes aware (i) to use, disclose or copy Proprietary Information without authorization from the other party or (ii) to copy, reverse assemble, reverse compile or otherwise reverse engineer any part of the Proprietary Information.
4.2 Return/Destruction of Proprietary Information. Upon termination of this Agreement for any reason or upon the other Party’s written request, each Party promptly shall: (a) return or securely destroy, at the other Party’s direction, all tangible material embodying the Proprietary Information in such Party’s possession or under such Party’s control; and (b) if requested by the other Party, deliver an affidavit, signed by an executive officer of such Party, certifying that such Party has complied with the obligations set forth in subsection (a) above.
5.1 Services Generally. Subject to the terms of this agreement, Bizzuka shall use commercially reasonable efforts to make the System available to Customer.
5.2 Updates. Bizzuka shall install Updates to the System that apply to the Customer’s currently licensed Edition as outlined in the Monthly Service Plan at no additional charge. From time to time, new Plugins or features may be released by the developers of those Plugins. Only those Updates that apply to the Customer’s currently licensed Edition will be delivered automatically to the Customer at no additional charge and on the schedule called for in the Monthly Service Plan.
5.3 Support Options and Procedures. Bizzuka shall provide general support to the Customer as set forth on the Support Section of Bizzuka website for the Customer's currently licensed Edition. Different Editions of the System will be entitled to different levels of support. The amount of time allocated at no additional charge to the Customer is defined in the Customer Service Plan. Bizzuka may offer premium support options to Customer at an additional charge.
5.4 Error Correction. Bizzuka shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Bizzuka's normal business hours. Customer shall provide such access, information, and support as Bizzuka may reasonably require in the process of resolving any Error. This paragraph is Customer's sole and exclusive remedy for Errors.
5.5 Support Exclusions. Bizzuka is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (a) an Update to the Software that caused a visual or functional defect in the Customer's website; (b) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the System or its operating environment; (c) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Bizzuka's firewall); (d) Customer’s use of the System other than in accordance with the System’s documentation; or (e) a Force Majeure Event.
5.6 Support Fees. Customer understands and agrees that Bizzuka has the right to bill Customer at its standard services rates for any support issues excluded by Section 5.5 above. In the event of a DDoS attack or other security breach targeting client’s site, Customer agrees to compensate Bizzuka for actions taken to restore services to Client’s site or to protect Bizzuka’s infrastructure. If Client has purchased an advanced security service from Bizzuka, the terms of that service apply.
5.7 Limitation of Remedies. Correction of Errors as defined in this Agreement are Customer’s sole remedies for any Errors in the System.
6. Fees and Payment.
6.1 Fees. In return for the products, services and use rights provided by Bizzuka to Customer hereunder, Customer shall pay to Bizzuka the fees in the amount set forth. All dollar amounts refer to U.S. dollars.
6.2 Payment Terms. Bizzuka shall invoice Customer monthly or yearly in advance for all recurring charges, which invoices will also include all non-recurring charges and expenses incurred since the previous invoice. Customer shall pay all Bizzuka invoices within 10 days of the invoice date.
6.3 Renewals. The Service Fees for any renewal period are subject to an annual adjustment defined at the annual invoice period.
6.4 Actions for Non-Payment. Should Customer fail to satisfy any payment within ten (10) days of the due date, then, in addition and cumulative to any and all other remedies available to it and upon written notice to Customer, Bizzuka may disable access to the Service for Customer, revoke the rights granted herein, stop providing any support to Customer, and cease working on any professional services being performed for Customer pursuant to this Agreement or any other agreement. Should Bizzuka disable access to the Service under this section then Customer may reinstate such Service by paying all amounts owed to Bizzuka, including interest thereon. For the sake of clarity, any action taken by Bizzuka pursuant to this Section 6.4 shall not relieve Customer of any obligations under this Agreement or any other agreement.
6.5 Taxes. All prices and fees set forth herein are net amounts to be received by Bizzuka. Customer shall be responsible for any and all taxes and assessments that arise from this Agreement and related transactions, except for taxes based upon Bizzuka’s net income.
6.6 Pricing Changes. Customers selecting annual pricing will receive notice of changes in pricing at least 45 days before each anniversary of the Effective Date. Customers selecting monthly pricing will receive notice of changes in pricing at least 45 days before the month in which the change in pricing will take effect.
7.1 Indemnification by Bizzuka. Bizzuka, at its own expense, shall either defend or settle, at Bizzuka’s option, any third party claim, suit or proceeding (“Third Party Claim”) brought against Customer claiming that the Service, Software or Documentation, in the form in which they are furnished by Bizzuka, infringe upon a United States patent, trademark or copyright of such third party or misappropriates such third party’s trade secret, and Bizzuka shall pay any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees and expenses) arising out of or in connection with such Third Party Claim, and Bizzuka shall pay any final judgment entered against Customer by a court of competent jurisdiction or settlement agreed to by Bizzuka with respect to any such Third Party Claim, but only if: (a) Customer notifies Bizzuka in writing within twenty (20) days after first being notified of such Third Party Claim; (b) Bizzuka has control over the defense and settlement of such Third Party Claim; (c) at Bizzuka’s request and expense, Customer reasonably cooperates with Bizzuka in defending such Third Party Claim; and (d) Customer takes no action that is contrary to Bizzuka’s interests with respect to such Third Party Claim. In addition to its obligation set forth under this section, upon assertion of any such Third Party Claim, Bizzuka shall have the right, at its option and expense, to: (x) obtain the right for Customer to continue using the affected Service or Documentation; (y) replace or modify the affected portions of the Service or Documentation so that the they are no longer infringing; or, if neither of the foregoing options is reasonably acceptable to Bizzuka, then (z) terminate the rights granted Customer hereunder and refund to Customer any prepaid and unused Service Fees.
7.2 Limitations. This Section 7 states Bizzuka’s entire liability and Customer’s exclusive remedies for infringement. Bizzuka shall have no liability or obligation to Customer under this Section 7 to the extent that the Third Party Claim results from: (a) the Service or Software being used other than in accordance with this Agreement or the Documentation; (b) adaptations, modifications or alterations to the Service or Software made by a party other than Bizzuka or its authorized agents; (c) Customer’s use of the Service in combination with any programs, hardware or materials not provided or specifically approved by Bizzuka; (d) Customer’s use of the Service in conjunction with inaccurate or improper Customer Data; (e) the use or possession of Customer Data in violation of a third party’s intellectual property rights, or (f) any use of the affected Service, Software or Documentation after Customer receives notice of any such Third Party Claim (collectively, the "Exclusions”).
7.3 Indemnification by Customer. Customer shall indemnify, defend (at Customer’s own expense) and hold harmless Bizzuka Parties from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with (i) any of the Exclusions, and (ii) Customer’s unauthorized use or disclosure of the Service, Software or Documentation, or (iii) Customer Data.
8. Limitation of Liability.
8.1 General. EXCEPT TO THE EXTENT SET OUT IN SECTION 10.3 INFRA, IN NO EVENT SHALL BIZZUKA PARTIES (i) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, BUSINESS INTERRUPTION OR THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) HAVE AN AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEEDING THE TOTAL SERVICE FEES ACTUALLY PAID BY CUSTOMER TO BIZZUKA UNDER THE APPLICABLE SERVICE PLAN FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.
8.2 Cumulative Remedies. Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
8.3 Acknowledgement. Each Party acknowledges that the limitation of liabilities and disclaimers contained herein constitute an agreed upon allocation of risk between the Parties, have been factored into Bizzuka’s pricing and are an essential element of the bargain between the Parties.
9.1 Termination for Convenience. Either party shall be entitled, upon prior written notice of thirty (30) days to the other party and within fifteen (15) days of signed Agreement, to terminate this Agreement for convenience and without cause as of the termination date specified in the notice.
9.2 Termination with Cause. Either Party shall be entitled to terminate this Agreement in the event of any material breach by the other Party (including any failure by Customer to make payments when due) if such breach is not cured within thirty (30) days after receipt of written notice thereof or reasonable actions to cure such breach have not been initiated.
9.3 Cessation of Business. This Agreement, including all rights, access grants and Service Plan hereunder shall terminate automatically if either Party ceases conducting business in the normal course, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization which are not dismissed within ninety (90) days.
9.4 Suspension of Service. Bizzuka reserves the right to suspend its performance obligations hereunder in its sole discretion if Customer is in breach of its obligations hereunder. Under such circumstances, Bizzuka shall promptly notify Customer of its decision and the reasons therefor. If Customer addresses Bizzuka's concerns to Bizzuka's satisfaction, Bizzuka may resume performance.
9.5 Effect of Expiration or Termination. Upon termination of this Agreement for any reason or expiration or non-renewal of any Service Term, all rights granted to Customer hereunder with respect to the applicable Service, Software and Documentation shall cease, and Customer shall: immediately cease all use of the applicable Service, Software and Documentation, and promptly return or destroy, at Bizzuka’s direction, any Software or Documentation and all copies thereof. In addition, Customer promptly shall pay to Bizzuka all fees and other amounts due and owing under this Agreement. Any termination of this Agreement by Bizzuka shall be in addition to, and not in lieu of, any other rights or remedies available to Bizzuka at law or in equity. Except as expressly provided herein, no portion of the fees paid to Bizzuka under this Agreement shall be refundable upon termination of this Agreement, whether such termination is by Customer or by Bizzuka. Notwithstanding anything to the contrary contained herein, any provisions, which, by their nature, are intended to survive any expiration or termination of this Agreement shall so survive. Customer acknowledges that upon termination of this agreement, Bizzuka is under no obligation to either maintain customer data or to provide customer with access to or a copy of the customer data.
10.1 Assignment. Customer shall not assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without Bizzuka’s express prior written consent, not to be unreasonably withheld. Any assignment in violation of this section shall be void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of the Customer. Bizzuka may freely assign this Agreement to any third party.
10.2 Notices. All notices or approvals required or permitted hereunder shall be in writing and shall be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; or (c) the date sent by facsimile, with a confirmation copy sent via national overnight courier, in each case addressed to the applicable address set forth on the first page of this Agreement.
10.3 Injunctive Relief. Customer recognizes that irreparable injury would result to Bizzuka in the event of Customer’s failure to comply with any of the terms of this Agreement, and that the full amount of the damages that would be incurred by Bizzuka as a result of any such breach would be difficult to ascertain. Accordingly, Customer hereby agrees that, in the event of any such breach or threatened breach, Bizzuka shall be entitled to seek appropriate injunctive relief without the need to post bond or prove the inadequacy of monetary damages. Bizzuka recognizes that irreparable injury would result to Customer in the event of Bizzuka’s failure to comply with any of the terms of this Agreement, and that the full amount of the damages that would be incurred by Customer as a result of any such breach would be difficult to ascertain. Accordingly, Bizzuka hereby agrees that, in the event of any such breach or threatened breach, Customer shall be entitled to seek appropriate injunctive relief without the need to post bond or prove the inadequacy of monetary damages. Each party reserves the right to seek injunctive relief, along with incidental, indirect or consequential damages for a breach of Section 4 of this Agreement.
10.4 Independent Parties; No Authority to Bind. The relationship of Bizzuka and Customer is that of independent contractors. Neither Party shall have any authority to bind the other Party to any obligation by contract or otherwise.
10.5 Severability; No Waiver. If any provision of this Agreement shall be deemed invalid or unenforceable, in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties. The failure of a Party to require performance of any obligations of the other Party hereunder shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time.
10.6 Third Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party under this Agreement, except that Bizzuka’s affiliates and Suppliers shall be deemed third party beneficiaries under this Agreement for purpose of enforcing their rights in their respective intellectual property rights and Proprietary Information.
10.7 Amendment. Any term or provision of this Agreement may be amended or modified only by a writing signed by both Parties.
10.8 Entire Agreement. This Agreement, including all Service Plans and attachments hereto, all of which are incorporated herein by reference, constitutes the entire understanding and agreement of the Parties, whether written or oral, with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings between the Parties with respect to the Service furnished by Bizzuka hereunder.
10.9 Order of Precedence. If any conflict or ambiguity arises between the terms and conditions set forth in the body of this Agreement and any term or condition of any Service Plan, Exhibit or other attachment to this Agreement, then, in every case, the order of precedence shall be the body of the Agreement then any other exhibits or attachments.
10.10 Force Majeure. Neither Party shall be held liable to the other Party for failure of performance (except for the payment of money) caused by the other Party or otherwise due to circumstances beyond the non-performing Party’s reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation or the like.
10.11 Governing Law, Venue. This Agreement shall be governed in accordance with and interpreted under the laws of the State of Louisiana without giving effect to its choice of law provisions. Without limiting either Party’s obligations toward alternative dispute resolution, any action, suit, or other proceeding brought by either Party against the other Party shall be brought in a State or Superior court or the United States District Court of competent jurisdiction in the metropolitan area of Lafayette, Louisiana. Both Parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to jurisdiction or venue in any such proceeding.
10.12 Security/Network Access. Customer’s access to Software will require access to the internet, and access to the internet is solely the Customer’s responsibility. No hardware, software, training, or support for access to the public internet will be provided by Bizzuka.
END OF STANDARD TERMS AND CONDITIONS