Last updated: October 24, 2023
This SaaS Service Agreement governs your use of the software-as-a-service solution identified below (the "Service"). "We" or "us" or "our" means Phase Two, Inc., a Washington corporation, with offices located at 140 Lakeside Avenue, Suite A49, Seattle, Washington 98122.
WE ARE WILLING TO GRANT ACCESS TO THE SERVICE TO YOU AS THE PERSON OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SERVICE ON THE CONDITION THAT YOU ACCEPT ALL OF THIS AGREEMENT OF THIS AGREEMENT. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN US AND YOU. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SERVICE, YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SERVICE.
Description of service
Platform Description: Phase Two Keycloak user authentication and SSO service
Available Tiers of Service:
- Starter: all features; up to 1,000 users and <10 identity provider connections: community support
- Premium: all features; unlimited users and identity provider connections; custom domain; email and chat support
- Enterprise: all premium features; multi-region deployment; custom themes and extensions; dedicated support; 99.99% uptime SLA
You will select your Tier of Service upon deployment creation.
Order form term
One year from the date you first access the Service.
- Starter: FREE
- Premium: $749 billed monthly OR $5,988 billed annually ($499 monthtly effective)
- Enterprise: $2,499 billed monthly OR $23,988 billed annually ($1,999 monthtly effective)
We will bill you according to the Tier of Service you select. You shall pay upfront at the beginning of each period.
This Agreement is subject to the additional terms and conditions specified on Exhibit A hereto, which is an essential part of this Agreement.
Exhibit A: Terms and Conditions
1. USE OF THE SERVICE
1.1 Use of the Service. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-transferable right during the term of this Agreement to use the Service solely in connection with your internal business operations. Your rights to use the Service are subject to any limitations on use of the Service based on the plan or version of the Service you register for (e.g., features, applicable usage limits) or that may be specified on the first page containing the order details (collectively, the “Scope Limitations”) and your rights to use the Service are contingent upon your compliance with the Scope Limitations and this Agreement. You are solely responsible for your conduct, for any data uploaded into the Service or otherwise provided for processing by the Service (collectively, “Your Data”), the content of Your Data and legality and means by which you acquired it, and all communications with others while using the Service. You acknowledge that we have no obligation to monitor any information on the Service, but we may remove or disable any information that you make publicly available on the Service at any time for any reason or for no reason at all. You, and not us, are responsible for the availability, accuracy, appropriateness, or legality of Your Data or any other information you may provide when using the Service.
1.2 Acceptable Use. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize others to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is false, misleading, illegal, defamatory, offensive, abusive, obscene, or that violates privacy, intellectual property, or any other legal rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system; (g) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, access, retrieve, index, "data mine", or in any way reproduce or circumvent, avoid, bypass, remove, or deactivate the navigational structure or technical measures or presentation of the Service or its contents; (h) attempt to probe, scan or test the vulnerability of the Service or any of our systems or network or breach any security or authentication measures; or (i) use, display, "frame" or "mirror" any part of the Service, our names, any of our trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page, without prior written authorization from us. You will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service or its underlying software. You will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Service and will include all such notices on any copies.
1.3 Accounts. We may provision one or more accounts and access credentials to you. You may not share your account or access credentials with anyone else. You are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login and account.
1.4 Evaluation Licenses; Beta Versions. If you are licensing the Service for evaluation purposes, your use of the Service is only for the period limited by the evaluation period we specify to you. Notwithstanding any other provision in this Agreement, an evaluation license of the Service is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version”). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may never make them generally available. We have no liability for any harm or damage arising out of or in connection with a Beta Version.
1.5 Reservation of Rights. We retain all rights, title, and interest, including all intellectual property rights, in and to the Service, its underlying technologies, and all its related or included components and elements, including without limitation any modifications, updates, customizations, routines, apps, or other add-ons. Your rights to use the Service on are limited to those expressly set forth in this Agreement. We reserve all other rights in and to the Service and its underlying technologies and components.
1.6 Technical Requirements. You will need certain equipment, software, and Internet access to be able to access the Service. Acquiring, installing, maintaining and operating equipment and Internet access is solely your responsibility. Phase Two neither represents nor warrants that the Service will be accessible through all web browser releases or operating systems.
1.7 Service Availability. You are responsible for making available Your Data as necessary for us to provide the Service. We will attempt to provide the Service at all times, except for periods for maintenance and repair or in the case of emergencies or outages. The Service may be subject to unavailability for a variety of factors beyond our control including, without limitation, emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Service or communications services or networks. We may impose usage or Service limits, suspend the Service, or block certain kinds of usage in our sole discretion to protect users, other third parties, data, our systems, or the Service. The accuracy and timeliness of data received is not guaranteed.
2. TERM; RIGHT TO RESTRICT OR TERMINATE ACCESS
2.1 Term. The term applicable to your use of the Service will be as specified on the first page of this Agreement (the “Term”). The Term will automatically renew for consecutive periods of equal duration unless you or we notify the other of its desire to non-renew the Term at least 30 days prior to the end of the current Term.
2.2 Termination. If you are using the Service free of charge, we may deny, suspend, terminate or restrict your access to all or part of the Service without notice in our reasonable discretion. If you have purchased a subscription to the Service, either you or we may terminate the Service (a) if the other party materially breaches this Agreement and fails to cure such breach within 30 days of written notice of such breach or (b) as may otherwise be permitted by this Agreement.
2.3 Post-Termination Obligations. Following any expiration or termination, you shall immediately cease use of the Service and any license granted to you under any agreement related to your use of the Service shall immediately terminate. Termination of this Agreement does not affect your right to pay any amounts previously owed to us. Upon termination, we (a) will within 30 days refund pro-rata any monthly fees paid in advance and not used through the effective date of termination, and (b) may delete all of Your Data, and other information stored on our servers. Sections 1.5, 2.3, 5.2, 6, 8, 9, 10, and 11 will survive termination.
3. CHANGE TO THE TERMS. We may add to, change or remove any part of this Agreement, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of this Agreement. Such modification shall be effective immediately upon posting a notification within the Service or by contacting you via email at the address you provided. As your next use of the Service may be governed by different Terms, we encourage you to look for a new effective date on this Agreement when you use the Service. It is your responsibility to check this Agreement periodically for changes. If we make any material changes to this Agreement, we will endeavor to provide all registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account. Your use or continued use of the Service following the posting or notice of any changes to this Agreement shall constitute your acceptance of the changed Terms.
4. FEES. You will pay the Fees in the amount and at the time specified on the first page of this Agreement. If no payment date is otherwise specified, you will pay all invoices issued within 30 days from the invoice date. A late charge of the lesser of 1.5% per month or the maximum amount permitted by law will be added to past due accounts until paid in full. All reasonable costs and expenses, including but not limited to attorneys’ fees, court costs and service charges incurred by us in collecting payment will be paid by you. Credit terms are at our discretion and are subject to change. You are responsible for all taxes associated with your purchase except taxes on our income. You will pay only in United States currency and are not entitled to set off any Fees against any other amounts for any reason.
5.1 Data Transmission. We use commercially reasonable efforts designed to protect Your Data. You acknowledge that use of the Service involves transmission of Your Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties due to the inability to protect against all threats at all times arising from the use of the internet. You must protect your login name and password from access or use by unauthorized parties, and are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach at email@example.com.
5.3 Removal of Data. If Phase Two is required by any third-party rights holder to remove any data, content or information, or receives information that any data, content or information provided by or to you may violate applicable law or third-party rights, we may discontinue your access to such data, content or information through the Service, and/or may notify you that you must discontinue all use of such data, content or information, and to the extent not prohibited by law, you will do so and promptly remove such data, content or information from your systems. Phase Two may disable access to the applicable data, content or information or Service until the potential violation is resolved.
6.1 Definitions. “Confidential Information” means any nonpublic information that a reasonable person would know should be kept confidential in light of the nature of its contents or circumstances of its disclosure. Our Confidential Information includes any usernames or passwords we issue to you or that you create, as well as the non-public aspects of the Service and any of our business, technical or financial information. “Disclosing Party” means the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents. “Recipient” means the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents. Confidential Information does not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
6.2 Requirement of Confidentiality. The Recipient agrees that it will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 6; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Recipient gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted). The obligations in this Section 6 will survive termination and continue for a three year period thereafter, or if the information constitutes a trade secret, indefinitely.
6.3 Feedback. The Service may permit you to or you may otherwise submit feedback, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. You agree we may freely use and exploit the Feedback without any requirement of confidentiality, other restriction or any duty of accounting.
7. WARRANTY; DISCLAIMERS
7.1 Limited Service Warranty. We warrant that Service will substantially conform to the written functional and technical service specifications we make available from time to time under normal use and circumstances. Your exclusive remedy and our sole obligations for any breach of the foregoing warranty is to the repair or re-perform the Service so that it complies with the foregoing warranty or for you to terminate your use of the Service. We are not responsible for any misuse of the Service or for any issues that arise from any third party product or service.
7.2 Warranty Disclaimer. EXCEPT AS SPECIFIED IN SECTION 7.1, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DO NOT MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. WE DO NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE OR DOCUMENTATION.
8. INDEMNIFICATION. You agree to defend, indemnify and hold us, our affiliate companies, and each of our respective directors, officers, employees, contractors, agents, successors and assigns harmless from any claim or demand, including reasonable attorneys’ fees, arising out of or relating to (i) any violation of this Agreement by you; (ii) Your Data or any other content or material you submit or otherwise transmit through our Service; (iii) your violation of any applicable laws or rights of another; (iv) your negligent or more culpable conduct; or (v) your use of the Service. We may, at our own expense, elect to assume the exclusive defense and control of any third party claim otherwise subject to defense by you. You may not settle or compromise any claim subject to this section without our prior written consent in our sole discretion.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Indirect Damages. UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“PHASE TWO PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM PERSONAL INJURY, DEATH, LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE.
9.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL ANY PHASE TWO PARTIES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
9.3 Exception. Some states or jurisdictions may not allow the exclusion or the limitation of liability. In such states or jurisdictions, the MIME Parties’ liability to you shall be limited to the full extent permitted by law.
9.4 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by us to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this section will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
10. ARBITRATION AGREEMENT
10.1 Mandatory Arbitration; Exceptions and Opt-Out. You agree that any dispute, claim or controversy arising out of or relating to this Agreement or the Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at firstname.lastname@example.org or by regular mail to 915 Broadway Street, Suite 112, Vancouver, Washington 98660 United States of America within thirty (30) days following the date you first accept this Agreement, or if you have not registered for an account, then within thirty (30) days following the date you first use our Service. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of Georgia and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
10.2 No Class Actions. Further, unless we otherwise agree in a writing signed by an authorized representative, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this agreement to arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in the Northern District of Georgia. All other claims will be arbitrated.
10.3 Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
10.4 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and may provide a separate form for Demand for Arbitration for residents of a particular state, such as California. The arbitrator will be either a retired judge or an attorney licensed to practice law with at least 15 years of experience and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
10.5 Arbitration Location and Procedure. If you are a business, the arbitration will be conducted in Fulton County, Georgia. If you are a consumer, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
10.6 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
10.7 Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
10.8 Changes. Notwithstanding anything to the contrary in this Agreement, if we change this “Arbitration Agreement” section after the date you accepted this Agreement or access our Service, you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Effective Date” listed at the beginning of this Agreement or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Arbitration Agreement” section as of the date you accepted this Agreement, or accessed our Service.
10.9 Survival. This “Arbitration Agreement” section will survive any expiration or termination of this Agreement.
11. CONSENT TO ELECTRONIC COMMUNICATIONS
11.2 Updating your Consent. If you later decide that you do not want to receive certain future communications electronically, please send an email to firstname.lastname@example.org or a letter to 140 Lakeside Avenue, Suite A49, Seattle, Washington 98122 United States of America. You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from us. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. We will need to send you certain communications electronically regarding the Service. You will not be able to opt out of those communications – e.g., communications regarding updates to the Terms or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to and accepted by, you. If you withdraw your consent to receive communications electronically, certain portions of the Service may become unavailable to you.
12. GENERAL PROVISIONS
12.1 Access by Competitors. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
12.2 U.S. Government Use. If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.
12.3 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.
12.4 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under this Agreement nor release you of your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under this Agreement without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
12.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address at the address provided by the other party and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
12.6 Force Majeure. We will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond our reasonable control.
12.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Subject to the venue requirements of the arbitration section, you consent to the exclusive jurisdiction of the state and federal courts in King County, Washington, USA.
12.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.9 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
12.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
12.11 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
12.12 Entire Agreement. This Agreement contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.