THIS CENSAI – MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS THE “SERVICES” (DEFINED BELOW) PROVIDED BY CENSAI, LLC (“CENSAI”) TO YOU (DEFINED BELOW). CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. BY AGREEING TO AN ORDER FORM OR STATEMENT OF WORK (“SOW”) INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, PROCEEDING WITH THE INSTALLATION OF THE CENSAI SOFTWARE; OR USING THE SOFTWARE OR SERVICE, IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND AN ORDER FORM OR SOW, THIS AGREEMENT SHALL GOVERN UNLESS OTHERWISE STATED IN SUCH ORDER FORM OR SOW. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE SUBSCRIPTION START DATE IDENTIFIED IN CLIENT’S SUBSCRIPTION ACCOUNT OR SET FORTH ON THE ORDER FORM OR SOW (“EFFECTIVE DATE”). FOR PURPOSES OF THIS AGREEMENT, CENSAI AND CLIENT ARE EACH SOMETIMES REFERRED TO AS A “PARTY” AND COLLECTIVELY, AS THE “PARTIES.”
The Parties agree as follows:
1. Services.
(a) Generally:
(i) CENSAI will use commercially reasonable efforts to provide services to Client: (1) as selected through Client’s Subscription Account (and subsequently confirmed through the issuance of an invoice (“Invoice”) by CENSAI and payable by Client per section [XX] below), (2) the subscription selection Client makes on an CENSAI Order Form, or (3) a statement of work agreed by the Parties (a “SOW) (the “Services”). A description for all Services provided by CENSAI and available for Client to subscribe to, along with additional terms and conditions which are incorporated into, and made a part of, this Agreement.
(ii) CENSAI does not have to agree to requests from Client for particular Services, even if a prior or related request has been honored in whole or in part. CENSAI has the sole discretion to decide whether or not to agree to a request from Client for particular Services. Changes in Law (defined in section 4(a)) may affect CENSAI’s ability to provide particular Services in some or all jurisdictions.
(iii) Third-Party Subscription Accounts. If CENSAI approves a request from Client to create an account where Client may provide access to the Services to third-party users who are not Representatives (defined in section 5(a)), CENSAI will provide Client with a “Third-Party Subscription Account.” Third-Party Subscription Accounts may be used by Client and Client’s third-party users authorized by CENSAI (the “Third-Party Users”). Client shall enter into an agreement with each Third-Party User, which ensures the Third-Party User’s compliance with this Agreement on substantially the same terms as Client (each a “Third-Party User Agreement”). Client shall provide Third-Party User Agreements to CENSAI upon CENSAI’s request. Client is liable for its actions and Third-Party Users’ actions related this Agreement.
(b) Client’s Subscription Account.
(i) Subscription Account Creation. Before CENSAI will provide Client with Services in accordance with this Agreement, Client must create an account (“Subscription Account”) by: (1) entering into this Agreement through the CENSAI website, or (2) separately entering into this Agreement, a form of which may be provided by CENSAI.
(ii) Generally. Client is responsible for all activity that occurs via its Subscription Account. Client is responsible for any increase or decrease in the Services it selects through its Subscription Account.
(c) Order Forms and SOWs.
(i) Order Forms. If Client agrees to this Agreement through an Order Form, the “Order Form Terms” will be part of this Agreement and govern each Order Form. The Order Form will describe the Services provided, the Fees (defined in section 2(a)), and the end date, if any, of the Services provided under the Order Form. The Order Form Terms are hereby incorporated into this Agreement. If there is a conflict between the terms of this Agreement and the terms of the Order Form, this Agreement controls.
(ii) SOWs. CENSAI may provide Client with Services not described in the Subscription Account or Order Form pursuant to a SOW. This Agreement governs each SOW. Each SOW will be incorporated into this Agreement. If there is a conflict between the terms of this Agreement and the terms of a SOW, this Agreement controls. If a Client receives Services through more than one of its Subscription Account, an Order Form or a SOW, the Order Form Terms will apply unless explicitly superseded by a SOW.
(d) Client Data. Client may provide data to CENSAI through its use of the Services (“Client Data”). CENSAI may require Client to provide Client Data in a form and media reasonably requested by CENSAI to perform Services. Client Data includes, but is not limited to, (i) data that Client made, learned of, or obtained as a result of or during its use of the Services; and (ii) all records or lists of Client’s constituents, targets, and ID work, and historical information, at the individual, household, or aggregate level regarding individual or household preference, activity, or other attributable information obtained by Client. The Parties acknowledge that CENSAI’s performance of the Services may depend on Client providing Client Data. Client Data may help enhance the CENSAI data warehouse and may provide enhanced capabilities for all of CENSAI’s clients, as allowed by Law (defined in section 4(a)), and therefore is a part of the cost of the Services.
(e) Disclaimers. Except as otherwise expressly provided in this Agreement, the Services are provided “as is” and without warranties of any kind by CENSAI, its affiliates or their respective data providers, including without limitation, any warranties of accuracy or completeness of any data contained in the service or implied warranties of merchantability or fitness for a particular purpose. Client is not relying upon any warranty, condition, guarantee, or representation made by CENSAI, its affiliates, any of their respective data providers or any other third-party supplier except as specifically set forth in this Agreement. The Services may include helping Client implement its data, analytics, and other strategies. Client acknowledges, however, that Client, not CENSAI, is solely responsible for its use of the Services and is responsible for determining its own communications and strategies.
(f) Independent Contractor. CENSAI is an independent contractor and, unless otherwise authorized in writing by Client, CENSAI has no right or authority in any way to bind, obligate, or make agreements for Client. Nothing in this Agreement will at any time be construed to create the relationship of employer and employee, partnership, principal and agent, or joint venture between the Parties. CENSAI is not entitled to the rights or benefits afforded to Client’s employees, including but not limited to, disability or unemployment insurance, worker’s compensation, medical insurance, paid time off, or any other employment benefit.
(g) Firewall Policy. To facilitate the Services, certain CENSAI policies, including the CENSAI Firewall Policy, are available for Client’s review upon request.
2. Fees and Payment.
(a) Fees and Subscription. Client shall pay all “Fees” when due as set forth in Section 2(d) below. Fees include the charges stated on an Invoice, Order Form or a SOW, and any Usage-Based Charges (defined in section 2(b)). Fees stated in an Invoice or an Order Form are based on the subscription to the Services selected by Client. Client’s payment obligations are non-cancelable, and Fees paid are non-refundable. Client shall provide accurate billing and contact information to CENSAI and notify CENSAI of any changes to its billing and contact information. Client will not be entitled to proration of Fees in the event a Service is terminated mid-billing cycle.
(b) Usage-Based Charges. Client may be required to reimburse CENSAI for usage-based charges incurred in providing the Services (“Usage-Based Charges”). CENSAI will attempt, to the extent reasonably predictable, to describe any anticipated usage-based charges in an Invoice, Order Form, or SOW. On some occasions, additional usage-based charges, not predicted or described in an Order Form or SOW, may be directly incurred in the provision of the Services to Client. These additional unanticipated usage-based charges will not be incurred without prior approval of Client. Client’s failure to timely approve the additional unanticipated usage-based charges may, at CENSAI’s sole discretion, preclude the performance of the Services. If approved by Client, the unanticipated additional usage-based charges will be included in Usage-Based Charges, along with such documentation reasonably requested by Client.
(c) Invoice/Order Form Payment Method and Payment Processor. Client shall provide CENSAI with valid credit card information or bank account information (“Payment Method(s)”) associated with the Subscription Account to process payment for the Services selected through the Subscription Account or each Order Form either by credit card or ACH payment. By providing CENSAI with a Payment Method, Client agrees that CENSAI will charge Client’s Payment Method for the Services listed in the Subscription Account or on an Order Form in the amounts and billing frequency stated in the Subscription Account or on an Order Form. CENSAI uses a third-party payment processor (“Payment Processor”) to charge Client the Fees through the Subscription Account or each Order Form. The processing of payments is subject to the terms of the Payment Processor and this Agreement. CENSAI is not responsible for the acts of the Payment Processor. In the event Client cancels or removes its previously selected Payment Method without first notifying CENSAI and providing alternate valid Payment Methods, CENSAI will be entitled to immediately terminate this Agreement without liability to Client, and Client will be liable to CENSAI for all unpaid Fees and reasonable termination costs. In the event Client improperly disputes a credit card charge initiated by CENSAI for payment of Fees hereunder, Client shall reimburse CENSAI or all reasonable expenses and attorney’s fees CENSAI incurs in collecting such disputed payment.
(d) SOW Payment. Client shall pay the Fees in the amounts and billing frequency stated on each SOW in a manner reasonably requested by CENSAI for Services provided through each SOW. Unless otherwise stated on the SOW, all Fees will be due and payable upon receipt of invoice.
(e) Overdue Fees. CENSAI will apply a late charge at the rate of three percent per month or the highest rate allowed by Law, whichever is lower, to any unpaid Fees.
(f) Taxes. The Fees do not include taxes or similar governmental assessments (collectively, “Taxes”). Client shall pay all Taxes associated with its purchase of the Services. CENSAI is only responsible for Taxes assessed based on its income, property, and employees. If the Law (defined in section 4(a)) obligates CENSAI to collect Taxes for which Client is responsible under this section, CENSAI will charge Client and Client will pay CENSAI for those Taxes.
3. Rights and Licenses.
(a) CENSAI’s Intellectual Property Rights. CENSAI retains ownership of any and all rights in or to the intellectual property contained in or embodied by the Services that it provides to Client.
(b) Client’s Use of the Services.
(i) Subject to this Agreement, CENSAI hereby grants Client the right, for it and its employees and contractors (“Authorized Users”), to access, in an operating environment hosted by CENSAI, the Software and use the Services, during the term of this Agreement, solely for the internal operations of Customer. Customer shall ensure Authorized Users comply with this Agreement and shall be liable for any noncompliance by Authorized Users.
(ii) Authorized Users are prohibited from (a) attempting, causing or permitting the reverse engineering, disassembly or de-compilation of the Software; (b) using the Software or Services to provide service bureau services to, or to otherwise provide data processing services for the benefit of, third parties; (c) allowing the Software or Services or Documentation to be used by, or disclosing all or any part of the Software or Documentation to, any person except Authorized Users; (d) violating or circumventing any restrictions specified in this Agreement or technological restrictions in the Services; or (e) providing Client Data that violates third party rights.
(iii) Client shall not transfer, exchange, or distribute any part of the Services to any third party without the express written authorization of CENSAI.
(c) CENSAI’s License to Client Data.
(i) Client grants CENSAI the royalty-free, perpetual, irrevocable, worldwide, nonexclusive right and license to use, process, reproduce, modify, adapt, publish, create derivative works from, distribute, exchange, lease, license, transfer, and display all Client Data.
(ii) Subject to the license provided in section 3(c), Client retains ownership of all Client Data, and may use, process, reproduce, modify, adapt, publish, create derivative works from, distribute, exchange, lease, license, transfer, and display such Client Data.
(iii) Client Data that constitutes personal information as defined by the .
(d) CENSAI’s License to Client Feedback. Client grants CENSAI the royalty-free, perpetual, irrevocable, worldwide, nonexclusive right and license to use, process, reproduce, modify, adapt, publish, create derivative works from, distribute, exchange, lease, license, transfer, and display any suggestion, recommendation, or other feedback provided by Client to CENSAI relating to the Services.
4. Representations and Warranties.
(a) Representations and Warranties Related to Compliance with Law. Each Party shall comply with all applicable U.S. federal and state laws, regulations, rules, ordinances, industry standards and guidelines, and applicable data protection laws (collectively, “Law” or “Laws”). Client further represents and warrants that:
(i) Client’s use of the Services under this Agreement will be consistent with all Laws, including (1) U.S. federal and state laws, regulations, rules, and ordinances relating to lobbying and electioneering; and (2) the Telephone Consumer Protection Act (47 U.S.C. §227) and other applicable telecommunications Laws (collectively “Telecommunications Laws”).
(ii) Client has complied with all applicable Laws in the processing, acquisition, compilation, maintenance, and disclosure of Client Data.
(iii) The disclosure, processing, and use of Client Data by either Party will not violate any Laws.
(iv) Only individuals authorized by this Agreement may access the Services. Client shall immediately notify CENSAI of any unauthorized access to the Services. Client shall assist CENSAI in its attempt to investigate and respond to any unauthorized access to the Services, and Client shall reimburse CENSAI for any and all reasonable costs and expenses incurred by CENSAI and its Representatives (defined in section 5(a)) related to such unauthorized access.
(v) Client has complied with all applicable Laws, including the Fair Credit Reporting Act, the Federal Election Campaign Act and any related state campaign regulations, the Health Insurance Portability and Accountability Act, and the Gramm-Leach-Bliley Act, in acquiring, processing, compiling, maintaining, and disclosing Client Data.
(vi) None of the information contained in Client Data: (1) will be used, or is expected to be used or collected, in whole or in part, for the purpose of serving as a factor in establishing any consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, soliciting survivors of deceased persons, employment purposes, or any other purpose authorized under section 604 of the Fair Credit Reporting Act; (2) contains “Non Public Personal Information” as defined in §6809(4) of the Gramm-Leach-Bliley Act; or (3) was or will be collected outside the United States from non-U.S. residents.
(b) Representations and Warranties Related to Client Data. Client acknowledges that it may be required to or otherwise provide Client Data to CENSAI under this Agreement. Client further acknowledges that CENSAI cannot determine independently whether Client has the appropriate rights and consents to provide Client Data for processing and use as contemplated by this Agreement. Therefore, Client represents and warrants that:
(i) Client owns or possesses all legal rights to provide and process all Client Data.
(ii) Client has obtained all necessary consents for the processing and use of Client Data under this Agreement.
(iii) Client has obtained all necessary consents for the processing and use of Client Data by CENSAI following the end of this Agreement.
(iv) Client has provided all notices to individuals represented in Client Data as required by Law: (1) for the performance by the Parties of their obligations under this Agreement; and (2) for CENSAI’s performance of similar services to other Clients.
(c) Representations and Warranties Related to Client Data. Client further represents and warrants that:
(i) Client shall not use the Services in any manner that infringes upon copyright, trademark, or any other rights of any third party.
(ii) Client shall not use the Services in any manner that deviates from reasonable and appropriate data security measures designed to prevent any breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to CENSAI Data and/or Client Data (a “Data Breach”).
(iii) Client shall not use the Services in any manner that constitutes misappropriation of trade secrets, libel, slander, defamation, piracy, plagiarism, unfair competition, or any invasion of the right of privacy or publicity.
(iv) Client shall not use the Services in any manner that violates Client’s contractual obligations to any third party.
(v) Client shall not use the Services in any manner that interferes with CENSAI’s operations.
(vi) Client shall not use the Services to transmit viruses, Trojan horses, worms, or any other malicious, harmful, or deleterious programs.
5. Confidentiality.
(a) Definition of Confidential Information and Confidentiality Obligations. Each Party understands and agrees that during the term of this Agreement it may be furnished with or otherwise have access to information that is designated as confidential or which, under the circumstances, should reasonably be considered to be confidential (the “Confidential Information”). Except as expressly authorized in writing by the Party disclosing the Confidential Information (the “Disclosing Party”), the Party receiving the Confidential Information (the “Recipient”) shall, and shall cause its directors, officers, employees, affiliates, representatives (including financial advisors, attorneys, and accountants), and agents (collectively, “Representatives”), to keep the Confidential Information confidential. Furthermore, the Recipient shall not sell, transfer, publish, or otherwise disclose or make available any portion of the Confidential Information in any manner whatsoever, without the express written authorization of the Disclosing Party.
(b) Providing Confidential Information to a Party’s Representatives. Without limitation of the foregoing, Recipient may reveal the Confidential Information only to those of its Representatives who: (i) clearly have a need to know such Confidential Information, and then only to the extent of such need, and only in furtherance of the specific purposes of this Agreement or subsequent agreements between the Parties and (ii) are informed by Recipient of the confidential nature of the Confidential Information. The Recipient is responsible for any breach of this Agreement by its Representatives.
(c) Use of Confidential Information. Nothing in this Agreement: (i) obligates the Disclosing Party to disclose any Confidential Information to Recipient; (ii) obligates Recipient to accept any Confidential Information from the Disclosing Party; or (iii) prevents or limits the Disclosing Party from disclosing its own Confidential Information to any third party.
(d) Information that is Not Confidential Information. Notwithstanding section 5(a), “Confidential Information” does not include: (i) information that was already in Recipient’s possession prior to the Effective Date on a non-confidential basis and which was not obtained directly or indirectly on a confidential basis from the Disclosing Party, its agents, employees or representatives; (ii) information obtained by Recipient on a non-confidential basis from a person or entity other than the Disclosing Party who is not known by the Recipient to be prohibited from so providing the information to Recipient by a contractual, legal, or fiduciary obligation to the Disclosing Party; (iii) information that is independently developed by Recipient without the benefit of any information provided by or on behalf of the Disclosing Party; and (iv) information that is or becomes generally available to the public other than as a result of a disclosure by Recipient or its Representatives in breach of this Agreement.
(e) Compelled Disclosure. If Recipient or any of its Representatives are requested pursuant to, or required by, applicable law, regulation, legal or administrative process or a duly authorized subpoena, court order, or government authority to disclose any of the Confidential Information, Recipient shall notify the Disclosing Party (if permitted by law) promptly so that the Disclosing Party may seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this Agreement. Recipient shall, and shall cause its Representatives, to cooperate in all commercially reasonable respects with the Disclosing Party’s efforts related to the protection and disclosure of Confidential Information. If no such protective order or other remedy is obtained, Recipient shall furnish only that portion of the Confidential Information which Recipient is advised by counsel is legally required to be furnished and shall exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the furnished Confidential Information.
(f) Rights to Confidential Information. Recipient agrees that the provision of Confidential Information of the Disclosing Party to the Recipient does not grant Recipient or its Representatives any rights of ownership in such Confidential Information nor does it affect the Disclosing Party’s existing or future rights in the Confidential Information. No license under any patent, trademark, copyright, or any other intellectual property or proprietary rights laws is either granted or implied by the disclosure of any Confidential Information. At the request of the Disclosing Party, Recipient shall, at Recipient’s option, promptly and irretrievably destroy its copies of such Confidential Information (including Confidential Information in any computer data, database, computer file, or in any other electronic medium) in Recipient’s possession or control or return the same to the Disclosing Party, and shall, within thirty days of receiving such a request, confirm in writing its compliance with the terms of this section 5; provided, however, that the Recipient may retain one copy for archival purposes within its legal department and the Recipient is not required to destroy any Confidential Information to the extent maintained in the ordinary course of business as part of electronic backup files or systems. After such destruction or delivery, Recipient shall not retain any additional copies thereof.
(g) Unauthorized Access to Confidential Information. If either Party experiences any incident involving the unauthorized acquisition of or access to any non-public, personal information by a third party, the Party shall notify the other Party within an appropriate time of learning of the incident to comply with all reporting or notice obligations under law and under this Agreement.
(h) Publicity. Neither Party will, without the other Party’s prior written authorization, use the name, service marks, or trademarks of the other Party or any of its affiliates.
6. Term and Termination of Services.
(a) Term. The term of this Agreement begins when Client signs this Agreement or otherwise accepts it through creating a Subscription Account or submitting an Order Form or a SOW, and will continue in force until earlier terminated pursuant to this Agreement. Each of Client’s Order Forms or SOWs will end on the date stated in such Order Form or SOW, unless earlier terminated pursuant to this Agreement.
(b) Right to Terminate Without Cause.
(i) CENSAI may terminate this Agreement, any particular Service, or any effective Order Form or SOW at any time upon fifteen days’ prior written notice. If Client materially breaches this Agreement, CENSAI has the right to immediately terminate this Agreement. For avoidance of doubt, a failure to pay Fees when due within seven days is a material breach of this Agreement.
(ii) Client may provide notice to terminate a Service, or an Order Form or SOW at any time during the period for which Client has paid all Fees owed to CENSAI for the Services (the “Final Subscription Period”). Upon providing such notice, the Service, Order Form or SOW will end at the conclusion of the Final Subscription Period. CENSAI will continue to provide the Services to Client during the Final Subscription Period, unless otherwise provided for in this Agreement. The Client will not receive any refund or prorated fee for the Final Subscription Period regardless of when it provides notice of termination and regardless of the extent of Client’s use of the Services. The Client shall pay CENSAI within thirty days from the end of the Final Subscription Period for any unpaid Usage-Based Charges. Upon conclusion of the Final Subscription Period and termination of all open Order Forms or SOWs, Client may terminate this Agreement upon fifteen (15) days’ prior written notice to CENSAI.
(c) Cure of Breach. If either Party is in breach of this Agreement and such breach is rectifiable, the Party in breach will have the opportunity to rectify said breach within ten business days after being notified of the occurrence of the breach. If the Party in breach fails to rectify the breach within ten business days of notice, the other Party will be entitled to terminate this Agreement immediately upon notice to the breaching Party.
(d) Effect of Termination. If this Agreement ends for any reason, CENSAI will immediately stop providing the Services, Client’s License to the Services will immediately end, and Client shall pay all outstanding Fees and Taxes less any amounts in dispute within thirty days.
7. Indemnification and Legal Process Notification.
(a) Client’s Indemnification Obligation. Client shall indemnify, defend, and hold harmless CENSAI, its affiliates, subsidiaries, and related companies, and its and their respective trustees, members, officers, directors, agents, representatives, and employees, and each of their respective successors against any and all actual or alleged third-party claims, suits, losses, damages, fees, judgments, costs, and expenses (collectively referred to as “Claims”) arising out of: (i) Client’s actual or alleged gross negligence or willful misconduct in connection with the Services provided for under this Agreement; or (ii) any actual or alleged breach by Client of this Agreement, which includes (1) any actual or alleged violation of Telecommunications Laws, and (2) any actual or alleged Data Breach.
(b) CENSAI’s Indemnification Obligation. CENSAI shall indemnify, defend, and hold harmless Client, its affiliates, subsidiaries, and related companies, and its and their respective trustees, members, officers, directors, agents, representatives, and employees, and each of their respective successors against any third-party Claim : (i) that the Services infringe any intellectual property rights of others, when used by Authorized Users in accordance with this Agreement; or (ii) to the extent caused by CENSAI’s violation of applicable Law.
(c) The indemnifying Party’s obligations under this Section are expressly conditioned on the following: (1) the indemnitee must promptly notify the indemnifying Party of any such Claim; (2) the indemnitee must, in writing, grant the indemnifying Party sole control of the defense of any such Claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in payment of money by the indemnitee or an admission of guilt by the indemnitee; and (3) the indemnitee must reasonably cooperate with the indemnifying Party to facilitate the settlement or defense of the Claim. If the indemnitee chooses to represent its own interests in any such action, the indemnitee may do so at its own expense, but such representation must not prejudice the indemnifying Party’s right to control the defense of the Claim and negotiate its settlement or compromise.
8. Limitation of Liability.
(a) Limitation of Types of Liability. Except for Client’s breach of sections 3(b) or 7, or a breach of section 4 by either Party,, neither Party is liable to the other Party for any consequential, indirect, punitive, special, exemplary, or incidental damages or expenses, or damages or expenses arising from loss of anticipated profits, business interruption, loss of use, loss of revenue, cost of capital, loss or damage to property or equipment, or loss of reputation incurred by the other Party or a third party, whether in law, equity, contract, or tort (including negligence or strict liability), even if the Party was advised of the possibility of the occurrence of such damages or expenses.
(b) Limitation of Maximum Liability. Except for Client’s breach of sections 3(b) or 7, a breach of section 4 by either Party, or for a failure to pay any Fees due hereunder, in no event will a Party’s aggregate liability related to the Agreement, whether in contract, tort (including negligence), or otherwise, exceed the Fees received by CENSAI pursuant to the Agreement during the 12-month period prior to the event giving rise to the claim.
9. Audit Rights.
CENSAI or any third-party auditor retained by CENSAI may audit the records and systems of Client to ensure compliance with this Agreement. CENSAI will notify Client in writing at least ten days prior to any such audit. Any such audit will be conducted during regular business hours and will not interfere unreasonably with Client’s business activities. If an audit reveals that Client is in breach of this Agreement, then CENSAI may pursue any remedies available to it, including charging any additional fees for Client’s use of the Services not stated in the Subscription Account or any applicable Order Form or SOW. CENSAI has the right to audit Client up to one year after the end of this Agreement.
10. Governing Law and Exclusive Venue.
This Agreement is governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws rules. The Parties agree that the exclusive jurisdiction and venue for any dispute arising under or relating to this Agreement is the United States District Court for the Eastern District of Virginia, except where subject matter jurisdiction is absent in that court, in which case the Parties agree to the jurisdiction of the state courts of Virginia situated at Arlington, Virginia. The Parties will not raise and hereby waive any defenses based upon venue, inconvenience, or lack of personal jurisdiction for any dispute arising under or relating to this Agreement.
11. Disputes and Notices.
(a) Non-Monetary Damages. Client acknowledges that in many cases it may be impossible to fully measure in money the damage caused to CENSAI by any failure to comply with, or any breach of, the material terms of this Agreement, and that such failure or breach may result in irreparable and continuing damage to CENSAI, and that in the event of any such failure or breach, CENSAI may not have an adequate remedy at law or in damages. Therefore, to compel the performance of all material terms of this Agreement, Client authorizes, without bond or other security, to the issuance of one or more of any of the following: (i) an injunction; (ii) a decree for specific performance; and (iii) the enforcement of other equitable remedies against it by CENSAI (including monetary damages if appropriate). Furthermore, Client hereby waives the defense of the availability of adequate relief in damages.
(b) Disputes. The Parties agree to negotiate in good faith towards a mutually agreeable resolution of any dispute arising under or related to this Agreement within a reasonable period of time.
(c) Notices. All notices must be in writing and delivered personally; by overnight delivery service; by registered or certified mail, return receipt requested; or to an email address provided by a Party. Notice to CENSAI must be sent to: CENSAI, LLC, 2300 Clarendon Boulevard, Suite 800, Arlington, VA 22201, Attn: General Counsel’s Office. Notices to Client may be given to the contact information Client provides when creating its Subscription Account.
12. Entire Agreement.
This Agreement, which includes any Order Form or SOW which are both incorporated into this Agreement, constitutes the entire agreement of the Parties. This Agreement supersedes all prior or contemporaneous written or oral negotiations, correspondence, understandings, and agreements between the Parties respecting the subject matter of this Agreement. Any changes, additions, stipulations, or deletions including corrective lining out by any Party to this Agreement or signatory to this Agreement will not be considered binding on any Party unless such modifications have been initialed or otherwise authorized in writing by the Parties to this Agreement.
13. No Waiver.
No delay or failure by any Party to enforce any right or claim under this Agreement is a waiver of such right or claim. Any waiver by any Party of any term of this Agreement is not a further or continuing waiver of such term. No waiver of this Agreement is binding unless authorized in writing by the Parties to this Agreement.
14. Assignment.
Each Party is prohibited from assigning or transferring this Agreement or any of its rights or obligations in this Agreement, whether in whole or in part, without the prior written authorization of the other Party. Client expressly authorizes in advance to any assignment or transfer to an affiliate of CENSAI provided that CENSAI shall notify Client at least ten days prior to such transfer or assignment and CENSAI shall include in such notice an affirmation that the new organization can perform under this Agreement in the same manner as CENSAI.
15. Survivability.
Sections 3-16 and such other terms which by their nature survive the end of this Agreement, with the exception of section 5, which will continue for two years after the end of this Agreement, will survive after this Agreement ends.
16. General Terms.
(a) Headings. The headings to and numbering of the sections of this Agreement are for ease of reference only and will not affect the interpretation, application, or construction of this Agreement.
(b) No Presumption. Each Party has participated in the negotiation and preparation of this Agreement and has been represented by counsel of its choosing. There will be no presumption that any ambiguities in this Agreement are to be construed against either Party.
(c) Third-Party Beneficiaries. Unless otherwise stated, this Agreement does not create, and will not be construed as creating any rights enforceable by any person not a Party to this Agreement. Notwithstanding the foregoing sentence, CENSAI is entitled to bring claims on behalf of its indemnified parties under section 7.
(d) Force Majeure. Except for Client’s payment obligations, neither Party is liable for any failure of or delay in performance of its obligations under this Agreement to the extent that such failure or delay is due to circumstances beyond its reasonable control, including acts of God, acts of a public enemy, fires, embargoes, storms, explosions, or labor disputes.
(e) Severability. If any term of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, then such term will be deemed automatically modified to conform to the requirements for validity and enforceability as declared at that time, and as so modified, will be deemed a term of this Agreement as though originally included in this Agreement.
