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Subscription Agreement

Last updated: August 09, 2021

Please read the following Subscription Agreement carefully as it contains the legal terms and conditions that Customer (as hereinafter defined) agrees to when Customer accesses or uses the Services (defined below) made available by IA Technologies, Inc. d/b/a interviewIA (“iIA”). “Customer” means the individual or entity that registers for the Services and accepts this Agreement. If you are an individual acting on behalf of a legal entity, you represent and warrant that you have full authority to bind such entity to this Agreement. “Agreement” means this Subscription Agreement and all Order Forms (defined below) into which this Subscription Agreement is incorporated. In the case of inconsistencies between this Subscription Agreement and any Order Form, the Order Form shall govern and take precedence solely with respect to the provisions of this Subscription Agreement explicitly superseded by the Order Form.

iIA may modify this Agreement (other than the Order Form terms) at any time. Modifications become effective immediately upon Customer’s first access to or use of the Services after the “Last Updated” date at the bottom of this Agreement. Customer’s continued access to or use of the Services after the modifications have become effective will be deemed Customer’s conclusive acceptance of the modified Agreement.

1. DEFINITIONS
(1.1) “Access Credentials” means login information, passwords, security protocols, and policies through which Users access the Platform.

(1.2) “Confidential Information” means all written or oral information, disclosed by one party (the “disclosing party”) to the other (the “recipient”), related to the business, products, services, or operations of the disclosing party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers, and agents; and (iii) information regarding the skills and compensation of the disclosing party’s employees, contractors, and other agents.

(1.3) “Customer Content” means the data or content uploaded by Customer into the Platform or otherwise accessed by the Platform from the Customer Systems.

(1.4) “Customer Systems” means the applicable Customer or third-party system identified in an Order Form for which the Platform is to be configured.

(1.5) “Documentation” means text and/or graphical documentation, whether in electronic or printed format, provided or made available by iIA to Customer that are identified as, or intended to be, descriptive of the features, functions, and operation of the Platform.

(1.6) “Order Form” means a document signed by an authorized representative of each party identifying the Platform and Services to be made available, the fees to be paid (if applicable), the subscription term and type, and other relevant customized terms and conditions.

(1.7) “Platform” means the iIA software-as-a-service application identified in any Order Form that allows Users to access certain features and functions through a web interface. References to the Platform include the Documentation.

(1.8) “License Territory” means the countries and other jurisdictions identified in the applicable Order Form.

(1.9) “Personal Information” means any Customer Content that identifies any specific individual and accordingly is protected under applicable privacy laws, rules, and regulations.

(1.10) “Services” means the Platform and any other services (which may include without limitation training, onboarding, account management, and support) ordered by Customer, to be provided by iIA, as set forth in an Order Form.

(1.11) “User” means each of Customer’s employees, agents, and independent contractors who are provided Access Credentials by Customer or iIA.

 

2. PLATFORM; SERVICES
(2.1) Provision of Platform. Subject to with the terms and conditions of this Agreement, iIA will use commercially reasonable efforts to make the Platform available to Customer 24 hours a day, 7 days a week, except for planned downtime, for which iIA will, to the extent practicable, give at least 8 hours’ electronic notice and schedule during weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday (PST).

(2.2) Ordering. The Services to be provided by iIA under this Agreement will be described and set forth in one or more Order Forms agreed upon by the parties from time to time.

 

3. ACCESS, RIGHTS, RESTRICTIONS, AND SECURITY
(3.1) Access Grant to Platform.   Subject to Customer’s compliance with the terms and conditions contained in this Agreement, iIA grants to Customer a non-exclusive, limited, non-transferable, non-sublicenseable, revocable right to allow Users in the License Territory during the Term to: (i) access and use the Platform to the extent identified in an Order Form; (ii) use and reproduce the Documentation solely in connection with Customer’s use of the Platform.

(3.2) Usage Limits. Access to the Platform is subject to the usage limits set forth in an Order Form (the “Usage Limits”). The Platform may not be accessed by more than that number of Users or in excess of the Usage Limits, and a User’s Access Credentials may not be shared with any other individual. If Customer exceeds the Usage Limits, iIA may, in its sole discretion, take any or all of the following actions: (i) reduce Customer’s usage such that it conforms to the Usage Limits; (ii) execute a separate Order Form for additional access to the Platform; (iii) invoice Customer for all usage in excess of the Usage Limits.; and/or (iv) terminate this Agreement pursuant to Section 8.2. No Usage Limits shall apply to Users acting solely as Interviewers, as defined by the Platform.

(3.3) Access Credentials. Customer will safeguard, and ensure that all Users safeguard, the Access Credentials. Customer will be responsible for all acts and omissions of Users. Customer will notify IIA immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.

(3.4) Customer Restrictions. Customer will not, and will not permit any User or other party to: (i) adapt, alter, modify, improve, translate, or create derivative works of the Platform; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Platform; (iii) sell, resell, license, distribute, rent, or lease the Platform; (iv) except as may be specifically provided in an Order Form or this Agreement, or otherwise approved by iIA in writing, provide any third party access to the Platform or use the Services on behalf of any third party, including as part of a time-sharing, outsourcing, or service bureau environment; or (v) exercise any rights in excess of those granted in Section 3.1 or access or use the Platform in excess of any usage limitations described in this Agreement, any Order Form, or as permitted by iIA. Notwithstanding the foregoing, Customer may use, and may authorize its Users to access and use the Platform solely on behalf of Customer.

(3.5) Open Source Software. Certain aspects of the Platform may include code or software that is subject to “open source” or “free software” licenses (“Open Source Software”) and may be owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement, and instead, is licensed to Customer under the terms of the applicable license associated with such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, any licenses applicable to such Open Source Software.

(3.6) Proprietary Rights and Confidential Information

(i) Confidential Information

(a) Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations under this Agreement, each disclosing party agrees as follows: (A) it will not disclose the Confidential Information of the disclosing party to anyone except its employees, contractors, third party services, and advisors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”); and (B) it will not use or reproduce the Confidential Information disclosed by the disclosing party for any purpose other than exercising its rights or performing its obligations as described herein. Each recipient will be liable for the acts and omissions of its Representatives with respect to the disclosing party’s Confidential Information. Notwithstanding the preceding, Customer agrees that iIA may process the Customer Content to create and compile aggregated data and/or statistics to provide to others provided that such aggregated data and statistics will not enable Customer or any living individual to be identified.

(b) Exceptions. The provisions of Section 3.6(i)(a) will not apply to Confidential Information that: (A) is or becomes publicly available or enters the public domain through no fault of the recipient; (B) is in the recipient’s possession without knowledge of any confidentiality obligations, or (C) is independently developed by the recipient without use of or reference to the disclosing party’s Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required: (1) by securities laws, (2) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (3) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

(ii) Customer Content

(a) Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality, and legality of Customer Content. Customer will obtain all third-party licenses, consents, and permissions needed for iIA to use the Customer Content to provide the Platform.

(b) License in Customer Content. Customer Content may include: (i) the substance of interview questions; and (ii) scores associated with such questions (collectively “Interview Content”). Customer grants to iIA a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense, to reproduce, make derivative works of, distribute, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Interview Content. iIA will not disclose any Interview Content to any third party unless it complies with the requirements applicable to Confidential Information with respect to such Interview Content or it does not associate such Interview Content with Customer. With respect to all other Customer Content, Customer grants to iIA a non-exclusive license to use such Customer Content as necessary for purposes of providing the Platform and as specified by this Agreement. Except for the limited licenses granted to iIA in any Customer Content, as between Customer and iIA, Customer reserves all right, title, and interest in the Customer Content.

(iii) Platform. Except for the limited licenses and access grant provided to Customer in this Agreement, including any Order Form, iIA reserves all right, title, and interest in its intellectual property and business including the Services, Platform, and all iIA trademarks. Unless otherwise expressly set forth in any Order Form, all work product or services provided or developed pursuant to this Agreement or any Order Form (including any modifications and improvements to any Platform pursuant subsection (iv) or any intellectual property developed pursuant to subsection (v) below), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of iIA.

(iv) Continuous Development. Customer acknowledges that iIA may continually develop, deliver, and provide to Customer ongoing innovation to the Platform, in the form of new features, functionality, and efficiencies. Accordingly, iIA reserves the right to modify the Platform from time to time. Some modifications will be provided to Customer at no additional charge. In the event iIA adds additional functionality to the Platform, iIA may condition the implementation of such modifications on Customer’s payment of additional fees, provided that Customer may continue to use the version of the Platform that iIA makes generally available (without such features) without paying additional fees.

(v) Services; Training and Support. Customer may request that iIA provide certain services related to Customer’s use of the Platform, including, by way of example, support services, configuration services, or additional training of Customer personnel. Excluding those Services agreed between the parties in an Order Form, iIA will have no obligation to provide or perform such services for or on behalf of Customer.

(vi) Feedback. iIA in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to iIA, including such comments and suggestions of Users, in connection with its access to and use of the Platform (collectively, the “Feedback”). Customer hereby grants iIA, on behalf of itself and its Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into iIA products and services.

 

4. SECURITY
iIA will maintain a comprehensive information security program consistent with industry standards that contains appropriate administrative, technical and physical safeguards reasonably designed to protect Personal Information from unauthorized disclosure. In the event that IIA has reason to believe that there has been any unauthorized access to, or loss of, Personal Information from its systems or premises, then it will promptly notify Customer according to iIA’s policies and protocols aligned with the data type and nature of the event.

 

5. CONSIDERATION
(5.1) Invoicing. iIA will invoice Customer for all fees for the Platform and Services in accordance with the terms set forth in the applicable Order Form (collectively, the “Fees”). If an Order Form solely contemplates Customer’s use of the free version of the Platform, unaccompanied by Services, Customer will not receive any invoices for, nor have any payment obligations in connection with, such free version.

(5.2) Fees. Customer will pay the Fees to iIA in accordance with the amounts and payment schedule set forth in the applicable Order Form(s). Except as expressly provided herein, all Fees are non-refundable. Unless otherwise specified in any Order Form, all invoices issued by iIA will be due and payable thirty (30) days after receipt by Customer. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. The Fees exclude, and Customer will be responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity in connection with the Platform and Services (excluding taxes based solely on iIA’s income). Alternatively, Customer may furnish to iIA an exemption certificate, provided however that if such exemption certificate is challenged or held invalid by a taxing authority then Customer agrees to pay for all resulting fines, penalties, and expenses (including without limitation reasonable attorney’s fees and costs).

(5.3) Expenses. Customer will reimburse iIA for any pre-approved travel and out-of-pocket expenses incurred by iIA in connection with the provision of Services, provided that Customer has approved such expenses in writing or via email.

 

6. WARRANTIES; DISCLAIMERS, LIMITATIONS ON LIABILITIES
(6.1) General Representations. Each party represents and warrants that: (i) as of the Order Effective Date (as such term is defined in the applicable Order Form) and throughout the Term, it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of the Agreement, or use of the Platform, will not conflict with or violate any provision of any law having applicability to such party; and (iii) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

(6.2) Compliance with Laws.
(a) Customer will be solely responsible for its hiring process and hiring decisions and for its compliance with all applicable laws, rules, and regulations relating to such process, including, but not limited to, with respect to its use of the Platform in connection with such process.

(6.3) Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, INCLUDING ANY ORDER FORM, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. IIA DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.

(6.4) Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL IIA BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.

(6.5) Limitations on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY IIA UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS.

(6.6) Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF IIA WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 6 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).

7. INDEMNIFICATION
(7.1) iIA Indemnity. iIA will indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liability, costs, and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third-party claim alleging that Customer’s use of the Platform in accordance with this Agreement infringes such third party’s patent, copyright, trademark, or trade secret.

(7.2) Exclusions. Section 7.1 will not apply if the alleged claim arises, in whole or in part, from: (i) a use or modification of the Platform by any Customer or any User in a manner outside the scope of any right granted or in breach of this Agreement; (ii) a combination, operation, or use of the Platform with other software, hardware, or technology not provided by iIA if the claim would not have arisen but for the combination, operation, or use; or (iii) the Customer Content (any of the foregoing circumstances under clauses (i), (ii), or (iii) will be collectively referred to as a “Customer Indemnity Responsibility”).

(7.3) Customer Indemnity. Customer will indemnify, defend, and hold harmless iIA, its directors, officers, employees, and representatives from and against any and all Losses arising out of any third-party claim: (i) alleging a Customer breach of any Customer representation or warranty in Section 6; (ii) arising out of any Customer Indemnity Responsibility; and (iii) or arising out of or relating to any failure of Customer’s hiring process or hiring decisions to comply with applicable laws, rules, and regulations.

(7.4) Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action, (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.

(7.5) Infringement. If the Platform is, or in iIA’s opinion, is likely to become the subject of any infringement-related claim, then iIA will, at its expense and in its discretion: (i) procure for Customer the right to continue using the Platform; (ii) replace or modify the infringing technology or material so that the Platform becomes non-infringing and remains materially functionally equivalent; or (iii) terminate the Order Form(s) pursuant to which the Platform is provided and give Customer a refund for any pre-paid but unused fees.

(7.6) THE PROVISIONS OF THIS SECTION 7 STATE IIA’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE PLATFORM OR SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.

 

8. TERM AND TERMINATION
(8.1) Term. Unless otherwise expressly set forth in the applicable Order Form, the term of this Agreement will commence on the Order Effective Date (as such term is defined in the applicable Order Form) and will continue for as long as any Order Form is in effect, unless terminated in accordance with this Section 8 or as otherwise expressly provided in this Agreement (the “Term”).

(8.2) Termination. Either party may terminate this Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.

(8.3) Suspension of Service(s). At any time during the Term, iIA may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (i) a threat to the technical security or technical integrity of the Platform; (ii) any amount due under this Agreement is not received by iIA within fifteen (15) days after it was due; or (iii) breach or violation by Customer of any statutes, laws, or regulations applicable to its use of the Platform.

(8.4) Termination upon Bankruptcy or Insolvency. iIA may, at its option, terminate this Agreement immediately upon written notice to Customer, in the event: (i) that Customer becomes insolvent or unable to pay its debts when due; (ii) Customer files a petition in bankruptcy, reorganization, or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) Customer discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of Customer’s creditors.

(8.5) Return of Customer Content. For twenty (20) days after the end of the Term, as applicable, iIA will make Customer Content available to Customer on a limited basis solely for purposes of Customer retrieving copies of Customer Content, unless iIA is instructed by Customer to delete such data before that period expires. After such period, iIA reserves the right to permanently delete the Customer Content. Nothing in this Section 8.5 shall impact iIA’s perpetual license in and to Interview Content, and iIA shall be permitted to retain such Interview Content despite any Customer instructions to delete the same.

(8.6) Effects of Termination. Upon termination or expiration of this Agreement for any reason: (i) any amounts owed to iIA before such termination or expiration and all completed but unpaid Fees will be immediately due and payable; and (ii) all license and access rights granted will immediately cease to exist except as set forth herein. Sections 1, 3.6(i), 3.6(ii)(b), 3.6(iii), and 5 through 9 will survive any expiration or termination of this Agreement.

 

9. GENERAL
(9.1) Assignment. This Agreement cannot be assigned by either Customer or iIA without the prior written consent of the other; provided, however, that iIA may assign this Agreement to any person or entity that is an affiliate, or acquired by sale, merger or otherwise, all or substantially all of its assets, stock or business. Any attempted assignment or delegation in violation of this Section 9.1 will be null, void and of no effect.

(9.2) Publicity. During the Term, iIA may use Customer’s name and logo to identify Customer as an iIA customer in iIA’s website, press releases, and promotional materials. iIA’s use of Customer’s name and logo will at all times be consistent with standards provided by Customer to iIA for such use.

(9.3) Notices. All notices, consents, and approvals under this Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address hereinafter set forth and will be effective upon receipt. Any such notice, consent, or approval should be sent: (i) if to Customer, to the address set forth on the applicable Order Form; or (ii) if to iIA, to IA Technologies, Inc., 3578 Hartsel Drive, Suite E124, Colorado Springs, CO 80920, Attn: Legal. Either party may change its address by giving notice of the new address to the other party.

(9.4) Governing Law; Disputes. This Agreement will be governed by the laws of the State of New York, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in New York, New York and both parties submit to the jurisdiction and venue of such courts.

(9.5) Remedies. Customer acknowledges that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to iIA for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

(9.6) Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(9.7) Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

(9.8) No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors, and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User) other than the parties, their successors, and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

(9.9) Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.

(9.10) Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terror, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

(9.11) Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.

(9.12) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

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