Terms of Service
ACCEPTANCE OF TERMS. “SLINGR” is a software as a service (SaaS) product offered by Idea2 Ltd, a Colorado company headquartered at: 12 E 49th Street, 11th Floor, NY NY 10017
By accepting this Terms of Services (TOS) or by accessing or using the Service, you agree to be bound by this TOS.
As used in this Agreement, the following capitalized terms, whether used in singular or plural forms, have the following meanings:
“Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“API Management” means ongoing monitoring and management of Application Programming Interface (“API”) that exchange information and workflow with other applications.
“App Instances” means a running process that handles requests for app database.
“Application Metadata” means a set of data that defines the structure and behavior of the application. This data is stored in the database as JSON documents and contains information about the elements of the application, like entities, listeners, scripts, endpoints’ configuration, and views. This data is consumed by the SLINGR Services to execute and render the application.
“Basic Support” includes:
- Management of all computational resources
- Automatic backups
- Restore to any point in time in the last 24 hours
- Support tickets about platform questions (not runtime application questions)
- Priority support for platform issues
“Customer Data” means electronic data or information submitted by Customer to the Services.
“Database Size” means all database size of all electronic data or information stored by Customer on Services.
“Endpoint” means a dedicated running process in charge of connecting one external service with one app on SLINGR.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the Digital and/or physical ordering documents for purchases hereunder, including addenda thereto, that are mutually signed by Customer and SLINGR from time to time. All Digital and physical Order Forms shall be deemed incorporated herein by reference. Exhibit A attached to this Agreement constitutes an Order Form for Customer’s initial User subscriptions.
“Services” means the online, web-based applications and platform services provided by SLINGR via slingr.io and/or other designated websites, that are ordered by Customer under an Digital and/or physical Order Form, including associated offline components of such Services, but excluding Third Party Applications. The Services consume Application Metadata to render Customers applications.
“Third-Party Applications” means online, web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“Premium Support” means
- Support tickets about runtime application questions
- Slack channel for communication
- Adjustments to the app based on API changes
- Bug fixing for blocker issues
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to the Services and Resources have been purchased, and who have been supplied User identifications and passwords by Customer (or by SLINGR at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents, or third parties with whom Customer transacts business.
2.1. Provision of Services. Following receipt by SLINGR of the fees identified in a Digital or physical Order Form, SLINGR shall make the Services in executable object code form available for access and use by Customer pursuant to this Agreement and the relevant Order Forms during the subscription term. Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by SLINGR regarding future functionality or features.
2.2. Platform Subscription. Unless otherwise specified in the applicable Digital or Physical Order Form, (i) Services are purchased, and rights to use the Services are granted and priced on the basis of the number of app instances, database, size, endpoints, and server resources ordered and paid for by Customer pursuant to a Digital or physical Order Form, (ii) subscription may be upgraded during given subscription term at the same pricing as applicable to the pre-existing subscriptions (pro-rated for partial year depending on when during the subscription term additional User subscriptions are purchased), and (iii) the added resources shall terminate on the same date as the pre-existing subscriptions.
3. USE OF THE SERVICES
3.1 SLINGR Responsibilities. SLINGR shall: (i) provide to Customer basic support for the Services at no additional charge, and/or Premium Application Support if purchased separately, and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime in excess of 15 minutes for each of the platform or the Customer application (of which SLINGR shall give at least 40 hours’ notice via the Services and which SLINGR shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond SLINGR’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SLINGR’s employees) (collectively, “Force Majeure Events”), or power outages, telecommunications disruptions, Internet service provider failures or delays.
3.2. Customer Responsibilities. Customer shall (i) be responsible for all Users’ compliance with this Agreement and all User activity on or through the Services and all activities conducted through Customer’s account with SLINGR, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, maintain confidentiality and security of Customer’s account access, passwords and login credentials, and notify SLINGR promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement and applicable laws and government regulations. Customer shall not (a) make the Services available or allow access to the Services to any person or party other than Users for whom subscriptions have been purchased and passwords and login credentials have been assigned, (b) sell, resell, rent or lease the Services or use the Services to provide service bureau data processing services to third parties, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access or exceed the scope of authorized access to the Services or their related systems or networks.
3.3. Usage Limitations. In no event shall Customer access the Services on any environment outside the hosted environment maintained and offered by SLINGR, and in no event shall Customer physically or personally possess or control any copy of the software or any related source code, object code, or technical documentation except as made available for authorized access under this Agreement by SLINGR. The Services shall be subject to such other limitations as set forth in a Digital or physical Order Form.
4. THIRD-PARTY PROVIDERS
4.1. Acquisition of Third-Party Products and Services. SLINGR may offer Third-Party Applications for resale to Customer under Digital or physical Order Forms. Any other acquisition by Customer of third-party products or services not expressly identified in a Digital or physical Order Form, including but not limited to Third-Party Applications and implementation, customization, and other consulting services, and any exchange of data between Customer and any third-party provider, is solely governed by Customer and the applicable third-party provider’s agreement and SLINGR assumes no responsibility or obligation with respect thereto. SLINGR does not warrant or support third-party products or services, whether or not they are designated by SLINGR as “certified” or otherwise, except as specified in a Digital or physical Order Form.
4.2. Third-Party Applications and Customer Data. If Customer installs or enables Third-Party Applications for use with Services, Customer acknowledges that SLINGR may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third-Party Applications with the Services. SLINGR shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. The Services allow Customer to restrict Users from installing or enabling such Third-Party Applications for use with the Services.
4.3. Google and Amazon Services. Service features that interoperate with Google or Amazon services depend on the continuing availability of the Google and Amazon API’s and programs for use with the Services. If either Google Inc. or Amazon Inc. ceases to make the Google or Amazon API’s or programs available on reasonable terms for the Services, SLINGR may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR SERVICES
5.1. User Fees. Customer shall pay all fees specified in Exhibit A and all other Digital and physical Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased and not actual usage, (iii) fees are calculated on a monthly basis, (iv) payment obligations are non-cancellable and fees paid are non-refundable, and (v) the number of User subscriptions purchased cannot be decreased during the relevant subscription term.
5.2. Payment. All payments shall be by charges to Customer’s credit card provided to SLINGR, on the first day of each monthly payment period identified in Exhibit A attached. Customer authorizes SLINGR to make such charges on such credit card for all Services. Customer is responsible for maintaining complete and accurate billing and contact information in the Services.
5.3. Overdue Charges. If any charges are not received from Customer by the due date (except charges then under reasonable and good faith dispute), then at SLINGR’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) SLINGR may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Payment). In addition, on each occasion any authorized credit card charge is denied by Customer’s bank, Customer shall pay SLINGR a late charge of $US50.00.
5.4. Charges 30 or More Days Overdue. If any charge owing by Customer under this or any other agreement for Services is 30 or more days overdue (except charges then under reasonable and good faith dispute) and Customer fails to cure the same within 30 days after receipt of written notice thereof, SLINGR may, without limiting SLINGR’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Customer’s access to Services until such amounts are paid in full.
5.5. Taxes. Unless otherwise stated, SLINGR’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If SLINGR has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides SLINGR with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SLINGR is solely responsible for taxes assessable against it based on SLINGR’s income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, SLINGR reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. Restrictions. Customer shall not (i) permit any party to access the Services except for Users as permitted herein or in a Digital or Physical Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer, decompile, or disassemble the Services or attempt to discern the programming code enabling the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Ownership of Customer Data. As between SLINGR and Customer, Customer exclusively owns all rights, title and interest in and to all of Customer Data.
6.4. Suggestions. SLINGR shall have an unrestricted right to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Cu6.5. Federal Government End Use Provisions. SLINGR provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with SLINGR to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer Data and Application Metadata; SLINGR’s Confidential Information shall include the Services, including all software programming, technical information, functionality, architecture and layout, and pricing associated with subscriptions to the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Digital and physical Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Protection of Customer Data. Without limiting the above, SLINGR shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. SLINGR shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. SLINGR’s Warranties. SLINGR warrants that (i) the Services shall perform materially in accordance with the Customer Requirements as agreed upon in the customization agreement, customer meetings, and user acceptance testing and (ii) subject to Section 4.3 (Google and Amazon Services), the functionality of the Services will not be materially decreased during the subscription term. For any breach of either such warranty, Customer’s exclusive remedy shall be for SLINGR to re-perform or repair the Services to make same conform with the foregoing warranty, and if SLINGR is unable to repair the Services, Customer’s sole and exclusive remedy shall be to terminate this Agreement and obtain a refund for unused portion of the subscription term as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below. SLINGR shall not be responsible for any warranty claims to the extent a defect or nonconformance in the Service is caused by any party other than SLINGR, a Force Majeure Event, or Customer’s use of the Services not in compliance with the law or this Agreement.
8.2. Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other Party any Malicious Code (except for Malicious Code previously transmitted to the warranting Party by the other Party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SLINGR DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET CUSTOMER’S REQUIREMENTS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by SLINGR. SLINGR shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by an unaffiliated third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly gives SLINGR written notice of the Claim; (b) gives SLINGR sole control of the defense and settlement of the Claim (provided that SLINGR may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to SLINGR all reasonable assistance, at SLINGR’s expense.
9.2. Indemnification by Customer. Customer shall defend SLINGR against any Claim made or brought against SLINGR by a third party alleging that Customer Data, or Customer’s use of the Services in violation of this Agreement or Customer’s use of any Third-Party Application or other product or service, infringes or mis-appropriates the intellectual property rights of a third party, breaches a contract, or violates applicable law, and shall indemnify SLINGR for any damages finally awarded against, and for reasonable attorney’s fees incurred by, SLINGR in connection with any such Claim; provided, that SLINGR (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release SLINGR of all liability); and (c) provides to Customer all reasonable assistance, at SLINGR’s expense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $US10,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3 Exceptions. The limitations, disclaimers and exclusions of liability shall not apply to a Party’s liabilities arising under an indemnification obligation hereunder, or to Customer’s exceeding the scope of rights to and permitted use of the Services or violation of the use restrictions and prohibitions related to the Services.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues for one year.
11.2. Term of Purchased Subscriptions. User/Resource Subscriptions purchased by Customer commence on the Subscription Commencement Date specified on Exhibit A. For any subsequently-subscribed resources, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless SLINGR have given Customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. If Customer elects to terminate the agreement at the end of the subscription term, SLINGR will grant a maximum of six months grace period billed at existing rates, to give Customer time to migrate off of SLINGR.
11.3. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon 60 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by Customer under Section 11.3(i) above, SLINGR shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by SLINGR, Customer shall pay any unpaid fees covering the remainder of the term of all Digital or physical Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to SLINGR for the period prior to the effective date of termination.
11.5. Return of Confidential Information. Upon request by a Party made within 30 days after the effective date of termination of this Agreement, the Receiving Party will return to the Disclosing Party all materials and files embodying the Confidential Information of the Disclosing Party. SLINGR may comply with the foregoing by making available to Customer for download a file of Customer Data in comma-separated value (.csv) format along with attachments in their native format and Application Metadata in JSON format. After such 30-day period, SLINGR shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data and Application Metadata in SLINGR’s systems or otherwise in SLINGR’s possession or under SLINGR’s control.
11.6. Surviving Provisions. Sections 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Customer Data), 11.7 (Migration Upon Bankruptcy or Cessation of Business), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1. Notices. SLINGR may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in SLINGR’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in SLINGR’s account information. Customer may give notice to SLINGR (such notice shall be deemed given when received by SLINGR) at SLINGR Ltd., 1624 Market Street Denver CO 80202, by recognized overnight courier service or by first class mail, or by email to support@SLINGR.com. Such notices shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
12.2. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
12.3. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.5. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7. Attorney Fees. In the event of any action between Customer and SLINGR regarding this Agreement, the Party substantially prevailing in such action shall be entitled to an award of its reasonable attorney fees and other costs incurred in such action, and such attorneys’ fees shall not be subject to any limitation or disclaimer of liability specified I this Agreement.
12.8. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Digital or physical Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.9. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Colorado and of the United States. The Parties stipulate that the sole forum and venue for any action relating to this Agreement shall the Colorado State Courts and the United States District Court located in the City and County of Denver, Colorado. Each Party hereby waives any right to a jury trial in connection with any action or litigation in any way relating to or arising out of this Agreement.
12.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all digital and physical Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any digital or physical Order Form, the terms of such exhibit, addendum or digital Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.11 If SLINGR ceases business operations, then SLINGR shall provide to Customer a copy of SLINGR’s then current machine-readable code for SLINGR’s then current version of its platform with which SLINGR provides the Services, and grant to Customer royalty-free, non-transferable, non-sub-licensable, perpetual license to use but not modify such code solely for the purposes for which Customer is using the Services at the time of such termination, except only as necessary to accommodate features of applications used by Customer.
In witness of the foregoing, the Parties have entered into this Agreement as of the Effective Date.