1.DEFINITION OF TERMS
The following terms have the following meanings:
“Analytics Data”shall mean the marketing and other analytics data generated by the Services in connection with Client’s use of the Services.
“Authorized User” means any employees, independent contractors, agents orrepresentatives of Client, subject to any limitations or restrictions set forthon an Order. For the avoidance of doubt, individuals staffed by Client to workat third party entities are not deemed Authorized Users.
“Client Content” means any information, data, text, logos, pictures,or other materials or content provided by Client in connection with Client’suse of the Services. For the avoidance of doubt, Client Content does notinclude Analytics Data.
“Confidential Information” means all information disclosed by one Party to theother in connection with this Agreement or otherwise obtained by the ReceivingParty, which the receiving Party knew or reasonably should have known was theconfidential information of the disclosing Party. Confidential Informationshall not include information that (i) is publicly available through no faultof the Receiving Party, (ii) is independently developed by the Receiving Party,or (iii) is rightfully obtained by the Receiving Party from independent sourcesfree from any duty of confidentiality. Confidential Information shall includethe terms and pricing in this Agreement, but not the fact that this Agreementhas been signed, the identity of the Parties or the specific services purchasedby Client.
“Data” means Analytics Data and Personal Data.
“Documentation” means Sense’s on-line documentation, as updated andamended from time to time.
“Feedback” means feedback, suggestions, improvements, andrecommendations regarding the Proprietary Items.
“Sense’s Trademarks” means Sense’s trademarks, trade names, logos, anddesignations.
“Order” meansSense’s standard order form executed by both Parties, substantially in the formattached as Schedule A to this Agreement, or an order in another form that isexecuted by both Parties and references this Agreement.
“Personal Data”means any data which by itself or combined with other information wouldidentify a specific individual.
“Proprietary Items”means, collectively, the Services and Documentation, the visual expressions,screen formats, report formats and other design features of the Services andDocumentation, all ideas, methods, algorithms, formulae and concepts used indeveloping and/or incorporated into the Services or Documentation, all futuremodifications, revisions, updates, refinements, improvements and enhancementsof the Services or Documentation, all derivative works based upon any of theforegoing, and all copies of all of the foregoing.
“Reports” means theassessment reports generated through the use of the Services, including allAnalytics Data and other data, information, or content therein.
“Services” means the limited access and use rights to theportions of Sense’s proprietary data staffing engagement tool, analysis, andReport creation platform.
2.SUBSCRIPTION RIGHTS AND OBLIGATIONS
Subscription Rights. Subject to the terms and conditions of this Agreementincluding full payment of all fees, Sense hereby grants to Client and itsAuthorized Users a non-exclusive, non-transferable (except in connection with apermitted assignment) license (i) during the applicable Order term, to accessand use the Services in accordance with the Documentation and subject to thelimitations set forth on the applicable Order and (ii) in perpetuity, to usethe Reports solely for Client’s internal business purposes.
Client Content License. Client hereby grants Sense a fully paid,royalty-free, irrevocable, worldwide, non-exclusive and fully sublicensableright (including any moral rights) and license to (a) during the Term, use,distribute, reproduce, modify, adapt, perform, and display Client Content forthe purposes of operating, providing, enhancing, improving, supporting, andmaintaining the Services for Client. Sense is responsible for complying withall applicable laws and regulations in relation to such contact withConsultants, including the Telephone Consumer Protection Act of 1991 andCAN-SPAM Act of 2003, as may be amended.
Data. Client acknowledges and agrees that Sense maycollect, retain, and use Data in any manner in compliance with Sense’s privacypolicy available at http://sensehq.com/privacy, provided that any disclosure ofAnalytics Data to third parties shall be in a form not directly attributable toor identified with Client except as may be necessary solely for such thirdparties to provide services to Sense.
ClientResponsibilities. Clientshall (a) be responsible for Authorized Users’ acts and omissions, (b) usecommercially reasonable efforts to prevent unauthorized access to or use of theServices, and notify Sense promptly of any such unauthorized access or use, (c)use the Services only in accordance with this Agreement and the Documentationand in compliance with all applicable laws and regulations, including theTelephone Consumer Protection Act of 1991, as may be amended, (d) reasonablycooperate with Sense as necessary for Sense to perform its obligations underthis Agreement, and (e) be responsible for all Client Content, including theaccuracy thereof and all rights necessary to use, distribute, and otherwisedisseminate such Client Content for the purposes contemplated under thisAgreement. Client represents and covenants that Client will maintain a privacypolicy and secure any necessary consents from all third parties (i) to whichmessages will be sent in connection with the Services in order to allow Senseto fulfill its obligations under this Agreement and (ii) to collect, use, anddisclose Data in accordance with the terms of this Agreement and Sense’sprivacy policy.
Sense Obligations. Sense shall host, operate, maintain, and support theServices, including any Client Content uploaded, posted, or otherwisetransmitted to the Services by Client or its Authorized Users. Sense shallprovide to Client standard support for the Services at no additional charge inaccordance with Sense’s standard support policies. Client may request supportservices by contacting Sense solely through the method set forth on theapplicable Order. Sense will use reasonable commercial efforts to make theServices available not less than 99.9% of the time in any given month, subjectto scheduled downtime and other parameters imposed by Sense’s web serviceprovider. Sense shall have no obligation to provide any additional services toClient, including, training, implementation, or any support or maintenance inexcess of Sense’s standard support policy, unless Client purchases suchservices as set forth in an Order. From time to time in accordance with Sense’sgenerally applicable procedures, Sense may make available to Client updates,upgrades, enhancements, and error corrections to the Services that Client haspurchased at no additional charge when such updates, upgrades, enhancements anderror corrections are generally made available to its other clients at noadditional charge.
Usernames and Passwords. Subject to any user limitations set forth in theapplicable Order, Client may register Authorized Users on the Service withe-mail addresses and passwords to enable Authorized Users to access theServices pursuant to this Agreement. Each e-mail address and password may onlybe used to access the Services during one (1) concurrent login session. Clientwill ensure that each e-mail address and password issued to an Authorized Userwill be used only by that Authorized User. Client is responsible for maintainingthe confidentiality of all Authorized Users’ passwords, and is solelyresponsible for all activities that occur under these accounts. Client agrees:(a) not to allow a third party to use Client’s accounts at any time; and (b) tonotify Sense promptly of any actual or suspected unauthorized use of an accountor any other breach or suspected breach of this Agreement. Sense reserves theright to terminate any accounts that Sense reasonably determines may have beenused by an unauthorized third party. Authorized User accounts and theirassociated e-mail addresses and passwords cannot be shared or used by more thanone individual Authorized User, but an account may be reassigned from time totime to a new Authorized User who is replacing a former Authorized User who hasterminated employment or otherwise changed job status or function and no longeruses the Services. Client is solely responsible for all access to and use ofthe Services by its Authorized Users and all access to and use of the Servicesthrough any Authorized User’s account.
Restrictions. Client shall not (and shall not permit any AuthorizedUser to) (a) make the Services available to any third party other thanAuthorized Users, (b) resell, lease, distribute, transfer or otherwise makeavailable the Services on a time-sharing or service bureau basis, (c) provideClient Content that is infringing, libelous, disparaging, or is otherwiseunlawful or tortious material, or store or transmit material in violation ofany third-party’s proprietary or privacy rights, (d) use the Services topromote any unlicensed, unfair, or illegal activities or for deceptive orillegal purposes, (e) use the Services to store or transmit malicious code, (f)use or access the Services in any way that potentially harms, harms, orotherwise threatens the reputation, integrity, performance, or availability ofSense, any Sense client, the Services or any data therein, (g) attempt to gainunauthorized access to the Services, other client content, or any data storedor processed therein, (h) decompile, disassemble, or reverse engineer theServices, in whole or in part, except as permitted by applicable law, or (i)use or access any Proprietary Items to create (or have created) a competing orsimilar service. Sense may restrict or prohibit use or access to the ProprietaryItems if Sense suspects such use or access is a breach of this Agreement, doesnot comply with the Documentation or the limitations set forth in an Order, oris otherwise objectionable or threatens the reputation of Sense, any Senseclient, or the Services or any data therein.
3.PAYMENTS
Fees and Expenses. Client shall pay to Sense, without offset ordeduction, the fees and expenses as determined under any Orders and thisAgreement. Sense reserves the right to increase the fees each year, but mustprovide notification of such increases at least ten (10) days in advance of theexpiration of Initial Term (as defined below). For Multi-Year Agreements, foreach Term Year subsequent to the 1st Term Year, any applicable Service(s) asset forth in the Schedule A, will remain at their prior Term years contractedminimum or then current usage at the beginning of each Term Year, whichever ishigher. Sense reserves the right to reconcile applicable product(s) Quantity ona periodic basis, and, if such number exceeds Client's contracted minimum,Sense reserves the right to invoice Client for the corresponding amount on apro rata basis.
Taxes. The fees and other amounts payable by Client to Sense donot include any taxes of any jurisdiction that may be assessed or imposed uponthe Proprietary Items, or otherwise, including sales, use, excise, value added,personal property, export, import and withholding taxes, excluding only taxesbased upon Sense’s net income. Client shall directly pay any such taxesassessed. Client shall promptly reimburse Sense for any taxes payable orcollectable by Sense (other than taxes based upon Sense’s net income). IfClient has provided Sense with proof of its tax exempt status, then, in theevent that Client’s tax exempt status should become altered, Client shall beobligated to notify Sense immediately of any such modification and Client shallbecome liable for all taxes as set forth above. In the event Client fails tonotify Sense of any such change, Client shall be liable for payment of any taxrelated penalties or interest assessed against Sense or Client as a result ofsuch Client failure.
Payment Terms. Sense may accept and process payment (including renewals)from Client by either credit card (e.g., Visa, MasterCard, or any other issueraccepted by Sense), wire transfer, or check, as mutually agreed. If paymentwill be made by credit card, Sense will process payment (including renewals)from Client based on any credit card information Sense is provided by Client.Client’s credit card agreement governs its use of the designated credit card oraccount. By providing Sense with credit card information, Client agrees thatSense is authorized to invoice and charge Client’s account for all fees andcharges due and payable to Sense and that no additional notice or consent isrequired. If Client’s credit card issuer rejects any amount charged on Client’scredit card, then Sense will notify Client thereof and Client will timely paythe fees and expenses by check or wire transfer. If payment will be made bycheck or if Client’s credit card issuer rejects any amount charged on Client’scredit card, amounts owed to Sense will be invoiced to Client’s address forinvoices as designated by Client or, if not designated, then the addressprinted on this Agreement. If any Client payment is more than thirty (30) dayspast due, interest at the rate of twelve percent (12%) per annum (or, if lower,the maximum rate permitted by applicable law) shall accrue. Unless otherwisespecified in this Agreement, all fees and other amounts paid by Client underthis Agreement are non-refundable. Sense requires auto-payment for recurringinstallments of less than $10,000. All dollar amounts referred to in thisAgreement are in United States Dollars.
Suspension. In the event that Client’s account is more than thirty(30) days overdue on any payment for any reason, Sense shall have the right, inaddition to its remedies under this Agreement or pursuant to applicable law, tosuspend Client’s use of the Proprietary Items, without further notice toClient, until Client has paid the full balance owed, plus any interest due.
4.WARRANTY
ALL PROFESSIONAL SERVICES, PROPRIETARY ITEMS, AND REPORTSARE PROVIDED “AS IS” AND SENSE MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHERORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OFDEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,NON-INTERFERENCE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THEFOREGOING, SENSE DOES NOT REPRESENT OR WARRANT THAT: (A) THE PROPRIETARY ITEMSOR REPORTS WILL MEET ANY FORECASTS, EXPECTATIONS OR SPECIFICATIONS OF CLIENT;(B) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (C) THEUSE OF THE SERVICES WILL NOT RESULT IN A LOSS OF CLIENT CONTENT OR OTHER CLIENTDATA; OR (D) THE USE OF THE SERVICES WILL NOT EXPOSE THE CLIENT’S HARDWARE ORNETWORKS TO ADDITIONAL SECURITY RISK. SENSE DOES NOT MAKE ANY GUARANTEES ABOUTTHE ACCURACY, CURRENCY, SUITABILITY, OR QUALITY OF THE REPORTS, AND DOES NOTASSUME RESPONSIBILITY FOR INACCURATE OR MISLEADING REPORTS. CLIENT IS SOLELYRESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL CLIENT CONTENT OR DATAUPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES.
5.LIMITATION OF LIABILITY
IN NO EVENT WILL SENSE BE LIABLE FOR ANY LOSS OF DATA, LOSTPROFITS, LOSS OF BUSINESS OPPORTUNITY, LOST REVENUE, OR INDIRECT, INCIDENTAL,SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THISAGREEMENT, INCLUDING ALL ORDERS, OR THE USE OF THE PROPRIETARY ITEMS BASED ONANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVENIF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SENSE’S TOTAL LIABILITY UNDERTHIS AGREEMENT, INCLUDING ALL ORDERS, SHALL UNDER NO CIRCUMSTANCES EXCEED THEFEES ACTUALLY PAID BY THE CLIENT TO SENSE IN THE TWELVE (12) MONTHS PRECEDINGTHE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.
6.CONFIDENTIALITY
All Confidential Information of a Party (“DisclosingParty”) in the possession of the other (“Receiving Party”), whether or notauthorized, shall be held in strict confidence, and the Receiving Party shalltake all steps reasonably necessary to preserve the confidentiality of theConfidential Information. The Disclosing Party’s Confidential Information shallnot be used or disclosed by the Receiving Party for any purpose except (a) asnecessary to implement or perform this Agreement, or (b) as required by law,provided that the other Party is given a reasonable opportunity to obtain aprotective order. The Receiving Party shall limit its use of and access to theDisclosing Party’s Confidential Information to only those of its employees orrepresentatives whose responsibilities require such use or access and who arebound by obligations of confidentiality at least as protective as those herein.The Receiving Party shall advise all such employees and representatives, beforethey receive access to or possession of any of the Disclosing Party’sConfidential Information, of the confidential nature of the ConfidentialInformation and require them to abide by the terms of this Section.
7.CLIENT CONTENT AND PROPRIETARY ITEMS
Client Content.
Client acknowledges thatall Client Content is the sole responsibility of the Client. Client, and notSense, is entirely responsible for all Client Content that Client uploads,posts, transmits or otherwise makes available through the Services.
Client represents thatClient owns and/or has all license rights necessary to use, license, reproduce,modify, adapt, publish, translate, create derivative works from, distribute,derive revenue or other remuneration from, communicate, perform anddisplayClient Content in the manner Client will use such Client Content on or throughthe Services.
Sense has no obligation topre-screen Client Content, although Sense reserves the right in its solediscretion to pre-screen, refuse, or remove any Client Content. Client herebyprovides its irrevocable consent to such monitoring.
Title and Ownership
All right, title, andinterest in and to the Client Content (including all related patent, copyright,trademark, trade secret, intellectual property and other ownership rights) areand will remain the sole and exclusive property of Client.
All right, title, andinterest in and to the Proprietary Items, the Reports (except any ClientContent therein), and Sense’s Trademarks (including all related patent,copyright, trademark, trade secret, intellectual property and other ownershiprights) are and will remain the sole and exclusive property of Sense and Sensereserves all rights not expressly granted by this Agreement. Any derivativeworks, modifications, or enhancements relating to the Proprietary Items(whether created alone by either Party or jointly by or on behalf of bothParties), the results of any professional services performed, and any Feedbackrelating thereto will be solely and exclusively owned by Sense. Client herebyassigns to Sense any rights, title and interest, including all intellectualproperty rights in any Feedback, derivative works, modifications, enhancements,or improvements related to the Proprietary Items that Client or any of itsAuthorized Users or representatives provide, propose, create, conceive, authoror develop relating to this Agreement or their use of the Proprietary Items.Client will execute and deliver (or cause its representatives to execute anddeliver) any additional documents deemed reasonably necessary or appropriate toperfect, maintain, protect, or enforce Sense’s rights described above and theintent of this Section.
8.INDEMNIFICATION
By Sense. Sense shall defend at its own expense any action againstClient brought by a third party to the extent that the action is based upon aclaim that the Services infringe any U.S. copyrights or misappropriates anytrade secrets recognized as such under the Uniform Trade Secrets Act, and Sensewill pay those costs and damages finally awarded against Client in any suchaction that are specifically attributable to such claim or those costs anddamages agreed to in a monetary settlement of such action. The foregoingobligations are conditioned on Client giving Sense (a) prompt written notice ofsuch claim (except that delayed notification will not negate Client’sobligations if such delay did not materially prejudice Client’s ability todefend the claim); (b) authority to control and direct the defense and/orsettlement of such claim; and (c) such information and assistance as Sense mayreasonably request, at Sense’s expense, in connection with such defense and/orsettlement. Notwithstanding the foregoing, Sense shall have no obligation orliability to the extent that the alleged infringement or misappropriationarises from (1) Client Content or the combination, operation, or use of theServices with products, services, deliverables, materials, technologies,business methods or processes not furnished by Sense; (2) modifications whichwere not made by Sense; or (3) Client’s breach of this Agreement or use of theServices other than in accordance with this Agreement (collectively, “IPExclusions”). Upon the occurrence of any claim for which indemnification is ormay be due under this Section, or in the event that Sense believes that such aclaim is likely, Sense may, at its option (i) modify or replace the Services sothat they become non-infringing; (ii) obtain a license to the applicablethird-party intellectual property; or (iii) terminate this Agreement (or theapplicable Orders) on written notice to Client and refund to Client anypre-paid fees for Services not provided based on the remainder of the then currentTerm. The obligations set forth in this Section shall constitute Sense’s entireliability and Client’s sole remedy for any infringement or misappropriation.
By Client. Client shall indemnify, hold harmless, and, at Sense’soption, defend Sense from and against all costs and reasonable expenses(including reasonable attorneys’ fees), damages, losses, and liabilities forany actions arising out of any (a) IP Exclusions, (b) Client Content (includingwithout limitation any third party claim that any Client Content is false,misleading, disparaging, infringing or a misappropriation, as applicable, ofany intellectual property rights of a third party), or (c) Client breaches ofits obligations in this Agreement. Sense agrees to give Client: (i) promptwritten notice of such claim (except that delayed notification will not negateClient’s obligations if such delay did not materially prejudice Client’sability to defend the claim); (ii) authority to control and direct the defenseand/or settlement of such claim; and (iii) such information and assistance asClient may reasonably request, at Client’s expense, in connection with suchdefense and/or settlement. Notwithstanding the foregoing, Client shall notsettle any third-party claim, unless such settlement completely and foreverreleases Sense with respect thereto or unless Sense provides its prior writtenconsent to such settlement. In any action for which Client provides defense onbehalf of Sense, Sense may participate in such defense at its own expense bycounsel of its choice.
9. TERMAND TERMINATION
This Agreement shallcommence on the Effective Date and shall continue for the duration as definedon the Schedule A under Term Length (“Initial Term”). Upon expiration ofthe Initial Term, this Agreement shall automatically renew for a new term equalto the Initial Term length (each a “Renewal Term”, together with theInitial Term, the “Term”), unless one Party provides the other Party atleast ninety (90) days written notice prior to the end of the then current Termof its intent to not renew the then current term (“Non-Renewal NoticeDeadline”). Automatically renewed Agreements will renew at the most recent TermYear Quantity or then current usage at the time Auto-renewal, whichever ishigher. Either party may terminate this agreement immediately on giving noticein writing to the other party if the other party:
commits a material breach(including any non-payment of fees due) and, in the case of a material breachcapable of being cured, failed to cure that breach within thirty (30) daysafter the receipt of a request in writing to cure such breach; or
(i) files for bankruptcy;(ii) becomes or is declared insolvent, or is the subject of any proceedingsrelated to its liquidation, insolvency or the appointment of a receiver orsimilar officer for it; (iii) makes an assignment for the benefit of all or substantiallyall of its creditors; or (iv) enters into an agreement for the cancellation,extension, or readjustment of substantially all of its obligations; provided,however, if the non-terminating party provides adequate assurances regardingits ability to continue performing the other Party may not terminate.
If an Order is terminated,Client shall immediately discontinue use of the Services for the applicableOrder. Subject to Sections 2.2 (Client Content License) and 2.3 (Data), uponany termination or expiration of this Agreement, whether under this Section orotherwise, all Orders shall immediately terminate and Client shall discontinueall access and use of all Proprietary Items, and each Party shall promptlyreturn or destroy (at the election of the other Party) any ConfidentialInformation of the other Party then in such Party’s possession or control.
Client shall remain liablefor all unpaid payments due to Sense with respect to the period ending on thedate of termination or expiration of the Agreement or any applicable Orders. Inthe event this Agreement is terminated by Client in accordance with Section 9.1for Sense’s material breach, Sense shall refund to Client any pre-paid fees forServices not provided for any applicable Orders based on the remainder of thethen current Term. Except in the event this Agreement is terminated inaccordance with Section 9.1 for Client’s material breach, Sense will makeAnalytics Data and Reports available to Client for thirty (30) days aftertermination or expiration of this Agreement. The provisions of Sections 1, theperpetual terms of Sections 2.1 and 2.2, 2.3, 2.7, 3.2, 3.3, 4, 5, 6, 7, 8, and10 shall survive any termination or expiration of this Agreement.
10.OTHER PROVISIONS
Publicity. Client authorizes Sense to use Client’s name in anyroutine list of Sense clients and as a reference. Each Party, with priorwritten consent of the other Party, may publicize the Services to be offeredunder this Agreement in its marketing and advertising material, and mayreproduce the company name, logo, trademark, trade name, service mark, or othercommercial or product designations of the other Party in connection therewith;provided, however, that such prior written consent shall not be required foreither Party to give the other’s name and disclose this Agreement in connectionwith any filings or press releases which it deems in its good faith discretionto be necessary under federal or state securities laws.
Notice. All notices, consents and other communications underor regarding this Agreement shall be in writing and shall be deemed to havebeen received on the earlier of the date of actual receipt or the firstbusiness day after being sent by a reputable overnight delivery service. EitherParty may change its address for notices by giving written notice of the newaddress to the other Party.
Assignment. Client may not, without Sense's prior writtenconsent, assign, delegate, pledge, or otherwise transfer this Agreement, anyOrder, or any of its rights or obligations under this Agreement or any Order toany third party, whether voluntarily or by operation of law. A sale of assets,merger, or consolidation will be deemed an assignment for the purposes of thisAgreement. Any attempted assignment in violation of the foregoing will be nulland void.
Governing Law and Venue. This Agreement shall be construed and enforced inaccordance with the laws of the state of California excluding choice of law;provided, however, that the terms of any applicable law now or hereafterenacted that is based on or similar to the uniform computer informationtransactions act drafted by the national conference of commissioners on uniformstate laws shall not apply. Each Party irrevocably agrees that any legalaction, suit or proceeding brought by it that in any way arises out of theAgreement must be litigated exclusively in state court in San Francisco County,California or in a federal court in the Northern District of California.
Force Majeure. Except with respect to Client’s payment obligations,neither Party shall be liable for, nor shall either Party be considered inbreach of this Agreement due to any failure to perform its obligations underthis Agreement as a result of a cause beyond its control, including any act ofGod or a public enemy, act of any military, civil or regulatory authority,change in any law or regulation, fire, flood, earthquake, storm or other likeevent, disruption or outage of communications (including the Internet or othernetworked environment), power or other utility, labor problem, unavailabilityof supplies or any other cause which could not have been prevented by thenon-performing Party with reasonable care.
Export Laws and UseOutside of the United States. Clientshall comply with all applicable export related laws and regulations. Clientshall not export or re-export directly or indirectly (including via remoteaccess) any Proprietary Items (or parts thereof) to any applicable jurisdictionor entity prohibited by law or to which a license is required without firstobtaining a license from the applicable regulatory authority. Client willdefend, indemnify and hold harmless Sense from and against any violation ofsuch laws or regulations by Client or any of its agents, officers, directors,or employees.
Relationship. The relationship between the Parties under thisAgreement is that of independent contractors and not partners, joint venturersor agents.
Modification and Waiver. No modification of this Agreement, and no waiver ofany breach of this Agreement, shall be effective unless in writing and signedby an authorized representative of both Parties. This Agreement may not bemodified or amended without written agreement of the Parties. No waiver of anybreach of this Agreement, and no course of dealing between the Parties, shallbe construed as a waiver of any subsequent breach of this Agreement.
Order of Precedence. In the event of a conflict between the provisions ofthe Master Terms and Conditions and the terms of any Order, the Master Termsand Conditions shall control. Any pre-printed terms in an order document orwritten purchase authorization that add to, or conflict with or contradict, anyprovisions in the Master Terms and Conditions will have no legal effect.
Interpretation. The Section headings of this Agreement are forconvenience and will not be used to interpret this Agreement. As used in thisAgreement, the word “including” means “including but not limited to.”
Severability. If any portion of any provision of this Agreement isheld to be illegal, invalid or unenforceable, in whole or in part, (a) suchunenforceable portion of the provision will be deemed severed from thisAgreement, (b) the validity and enforceability of the remaining portion of theprovision and the other provisions of this Agreement will not be affected orimpaired, and (c) this Agreement will be amended in order to effect, to themaximum extent allowable by law, the original intent of such provision.
Entire Understanding. This Agreement, which includes and incorporates Orders, states the entire understanding between the Parties with respect to its subjectmatter, and supersedes all prior proposals, marketing materials, negotiationsand other written or oral communications between the Parties with respect to the subject matter of this Agreement.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.