This Fairgen Service Agreement (the “Agreement”) is entered into as of the Effective Date of the Order (as such term defined below) (“Effective Date”) by and between Fairgen Ltd., a company incorporated in Israel with offices at 30 Ibn Gabirol St., Tel Aviv, Israel (“Fairgen”), and the Customer identified in a respective Order (“Customer”). Each Fairgen and Customer may be referred to herein individually as a “Party” or collectively as the “Parties”.
1. Definitions.
For the purposes of this Agreement, the following terms shall have the meanings set out below:
1.1. “Affiliate” means with respect to a Party, any entity that is, directly or indirectly, controlled by and/or under common control with and/or controlling such Party or in which the concerned Party holds directly or indirectly more than 50% of its shares.
1.2. “Boost(s)” means the segment data generated by Fairgen through Fairgen’s technology applied to the Data under this Agreement, at the amount indicated in the applicable Order.
1.3. “Confidential Information” means all proprietary or confidential information or data relating to a Party and/or its Affiliates and/or their respective personnel, products or services, clients, or prospects. Information shall not be considered ‘Confidential Information’ to the extent such information is: (i) already known to the Recipient free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of the Recipient; or (iv) independently developed by or for the Recipient without any use of or reference to any Confidential Information of the Discloser.
1.4. “Data” means quantitative (close-ended) data points in a columnar electronic form, or that is submitted, transmitted, or otherwise provided by the Customer or on its behalf in connection with the use of the Solution.
1.5. “Documentation” means the instructions, user guides, manuals, and release notes generally provided by Fairgen, at any time, in printed and/or electronic form, that describe the technical operation or specifications of the Services.
1.6. “Order(s)” means any applicable order form agreed by Fairgen and signed by the Parties from time to time.
1.7. “User(s)” means Customer’s personnel who are authorized by Customer to access and use the Services.
1.8. “Services” means the Solution, maintenance and support services, Boosts, Fairgen’s dashboard, and other materials generated via the use of the Solution, and any other Fairgen’s services detailed in the Order(s).
1.9. “Solution” means Fairgen’s proprietary platform analyzes the Data and enables the Customer to identify segments that require additional information, generate synthetic responses/data by using a generative artificial intelligence (AI) model trained on the Customer’s Data, and produce more insights on such segments in greater detail with a reduction in bias.
2. License and Services
2.1. Subject to Customer’s compliance with its obligations under this Agreement and the applicable Documentation, Fairgen hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right to use the Solution and Services as indicated in the applicable Order, beginning on the Effective Date and continuing through the Subscription Term (as defined below), solely for Customer’s business purposes. Fairgen may decline specific projects at its reasonable discretion.
2.2. Boosts credit is personal to the Customer and cannot be transferred, traded, or shared with anyone else. Upon termination or expiration of the Order, the Boosts will automatically expire, unless otherwise indicated in the applicable Order.
2.3. Fairgen shall make available Documentation to Customer, in connection with the use of the Services. The Customer may copy the Documentation as needed for the Customer’s own internal business purposes, provided that all copyright notices are included therein. The Documentation shall be considered Fairgen’s Confidential Information.
2.4. Service Level Agreement. During the Subscription Term, Fairgen shall provide the Customer with Fairgen’s generally available standard maintenance and support services (“M&S”) according to the Service Level Agreement (“SLA”) attached hereto as Exhibit B. The M&S services will be limited to supporting the operation of the Solution as described in the Documentation and do not include any assistance with the Customer’s hardware, third-party applications, services, or software, or non-Fairgen interfaces.
2.5. Additional Services. During the Subscription Term, Fairgen may provide the Customer with such additional services (“Additional Services”), in the event such are included under the applicable Order. Such Additional Services shall be subject to supplementary fees as detailed in the applicable Order and will be provided as stipulated in the SLA or as otherwise agreed between the Parties in writing.
3. Customer Data.
3.1. As part of the engagement contemplated hereunder, Customer may provide certain Data through its use of the Solution. All such Data shall be owned by the Customer and shall be regarded as Customer’s Confidential Information. Customer hereby grants Fairgen a non-exclusive, non-transferable right to use the Data, solely for the purpose of providing the Services and as otherwise set forth in this Agreement. Fairgen shall have the right to maintain the Data for such period of time necessary, or required, in order to provide the Services, and as required under applicable law and subject to all other terms and conditions of this Agreement.
3.2. The Parties hereby acknowledge and agree that to the extent any personally identifiable information or personal data (as such term is defined under any applicable law) is included in the Data or otherwise provided by the Customer to Fairgen in connection with the Services (“Customer Personal Data”), then (i) the collection, use, and processing shall be in accordance with any applicable laws, including, data protection laws, and Customer shall ensure to make all necessary disclosures and obtain all required consents (if required), in order to transfer such Customer Personal Data to Fairgen for the purposes of performance of this Agreement, (ii) Fairgen shall comply with all applicable laws in connection with its use of such Customer Personal Data provided to it by the Customer in connection with this Agreement, and shall process such Personal Data in accordance with Fairgen’s Data Processing Agreement (“DPA”), available at https://www.fairgen.ai/dpa, as may be updated from time to time, which incorporated herein by reference, and shall govern the collection and processing of any such Customer Personal Data.
3.3. Customer represents and warrants that Customer has obtained and will obtain and continue to have, during the Subscription Term (as defined below), all necessary rights, authority, and licenses for the access, use, and processing of the Data as contemplated by this Agreement, including any Customer Personal Data.
4. Use Restrictions. The Customer hereby undertakes that unless otherwise expressly provided herein, it shall not, nor shall allow anyone else to: (a) distribute, license, sublicense, or sell the Services or any outputs to any third party; (b) modify, alter, copy, transfer, emulate or create any derivative works of the Solution, the Services or of any part thereof; (c) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code, know-how or designs from the Solution, the Services or any part thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Solution and/or any Documentation; (e) bundle, integrate, or attempt to integrate with the Solution, the Services or any part thereof any third-party software technology other than as expressly permitted in writing by Fairgen (including through the Documentation); (f) use the Solution, the Services or any part thereof for any benchmarking or for competing development activities; (g) transmit, distribute, display or otherwise make available through or in connection with the Services any content, in a manner which infringes third party rights, including intellectual property rights and privacy rights; (h) transmit or otherwise make available in connection with use of the Services any malware or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (i) interfere with or disrupt the operation of the Services or their availability; (j) discover, extract or attempt to discover or extract the underlying components of the Solution, or use web scraping or other data extraction methods to extract data from the Solution; and/or (k) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Solution except for Customer’s internal use or as expressly permitted by Fairgen in writing. Without derogating from the foregoing, Customer shall take commercially reasonable precautions to prevent any unauthorized access and/or unauthorized usage of the Services and shall be responsible and liable for any act or omission of its personnel or Users in connection with the use of the Services.
5. Third Party Components. The Services may use or include third-party software, files, and components that are subject to third-party license terms (“Third Party Components”). Fairgen disclaims all liability related to any Third-Party Components utilized in the Services. Customer acknowledges that Fairgen is not the author, owner, or licensor of any Third Party Components and that Fairgen makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance, or suitability of Third Party Components.
6. Trial and Beta Features.
6.1. Subject to this Agreement and any applicable Order, Fairgen may provide the Customer with access to the Services or limited features or functions thereof on a non-obligation trial basis (“Trial”). To the extent applicable, Fairgen shall make the Trial available to Customer until (a) the end date of the paid subscriptions purchased by Customer for use of the Services; or (b) terminated by Fairgen, unless if otherwise agreed between the Parties.
6.2. Fairgen may make available from time to time, at its sole discretion, pre-released beta versions of certain services on a trial basis for a limited period (“Beta Features”). The Customer acknowledges that the Beta Features are under development and, as such, may be incomplete, not operate as intended, or contain errors and bugs. The Customer’s use of the Beta Features following the trial period may be subject to additional fees as shall be agreed expressly between the Parties.
6.3. Specific Terms for Trial and Beta Features. Fairgen reserves the right to modify, cancel, and/or limit the Trial and/or Beta Features at any time. Customer’s access to the Trial or Beta Features during the trial period shall be governed by the terms of this Agreement, provided, however, that the Trial and Beta Features are provided on an “as-is” basis, without any representations or warranties of any kind whatsoever, and Fairgen disclaims any and all obligations and undertakings in relation to the Trial and Beta Features, including any indemnification obligations or warranty provided hereunder. In no event shall the total aggregate liability of Fairgen and its Affiliates in connection with the Trial and/or Beta Features exceed one hundred US Dollars (US $100). The Customer assumes all risks associated with or arising out of the Customer’s use of the Trial and/or Beta Features. Subject to applicable law, and unless otherwise explicitly agreed between the Parties under the applicable Order, at any time and without notice, Fairgen reserves the right to modify the terms of the Trial and/or Beta Features or cancel the Trial and/or Beta Features.
7. Fees and Payment.
7.1. In consideration for the Services, Customer shall pay to Fairgen the fees and other considerations set forth in the applicable Order (the “Fees”). Payment shall be due in accordance with the payment schedule set forth in the Order, subject to Fairgen’s issuance of a valid invoice. All Fees are exclusive of any tariffs, duties, or taxes (however designated, levied, or based and whether foreign or domestic), including (without limitation) VAT and/or sales tax. Customer will pay or reimburse Fairgen as the case may be for all such tariffs, duties, or taxes, except for those taxes based on Fairgen’s income. Customer may not set off any Fees or payments due to Fairgen hereunder.
7.2. The payment shall be in accordance with the provisions set forth in the Order. Fees are non-refundable. Late payments shall bear interest compounded monthly commencing on the date such payments become due, using a monthly rate of 1.5% or the highest rate permitted by law (whichever is lower). Any payment or part of a payment that is not paid by Customer to Fairgen when due shall constitute sufficient cause for Fairgen to suspend its performance hereunder and/or terminate this Agreement, provided that seven (7) business days prior notice was provided to Customer. Except if agreed otherwise under an applicable Order, payment shall be made in Dollars by wire transfer only, using banking details provided by Fairgen.
8. Confidential Information.
8.1. Each Party acknowledges that it may directly or indirectly receive Confidential Information of the other Party in the course of the performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing Party (“Discloser”), and the receiving Party (“Recipient”) shall have no interest in, or rights with respect thereto, except as set forth herein. The Recipient shall treat such Confidential Information with the same degree of care and security as it treats its most confidential information but in no event with less than a reasonable degree of care. Recipient may disclose Discloser’s Confidential Information to its employees and contractors who have a need to know such Confidential Information in connection with the performance of Recipient’s obligations under this Agreement. The Recipient will ensure adherence to the confidentiality provisions hereof by its officers, directors, stockholders, employees, and contractors. Except as contemplated by this Agreement, the Recipient shall not disclose the Confidential Information of the Discloser without the prior written consent of the Discloser.
8.2. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information of the Discloser to a third party, if such disclosure is required by applicable law or to comply with a subpoena or court order, provided that the Recipient gives the Discloser prompt written notice (to the extent permitted by law, subpoena or court order) of such legal requirement prior to the disclosure and provides the Discloser reasonable opportunity to contest the requirement to disclose the Confidential Information.
8.3. Notwithstanding anything to the contrary, Customer acknowledge that due to the nature of machine learning and the technology powering AI tools, the Solution may generate similar outputs to third parties.
8.4. The duty to protect the Discloser’s Confidential Information shall expire five (5) years from the date of termination of this Agreement; provided that all confidentiality obligations in connection with trade secrets shall remain in effect until such information ceases to be considered as a trade secret. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby by either Party.
9. Term and Termination.
9.1. This Agreement shall become effective on the Effective Date and shall remain in effect for the term defined in the applicable Order(s) (“Subscription Term”). The Subscription Term shall automatically renew for successive periods of twelve (12) months (each, a “Renewal Term”, and together with the Subscription Term, the “Term”), unless either Party notifies the other Party in writing of its intent not to renew the Order, not less than thirty (30) days prior to the expiration of the then-current Term.
9.2. Either Party shall have the right to suspend performance or terminate this Agreement if the other Party is in breach of this Agreement, and such breach is not cured within thirty (30) days after receipt of written notice detailing such breach. Either Party may immediately terminate this Agreement and all Orders if the other Party is dissolved or liquidated, becomes insolvent or unable to pay debts as they mature, or ceases to so pay, or makes an assignment for the benefit of creditors. A Party’s exercise of its termination rights for reason of a breach hereunder shall in no way restrict or diminish such Party’s rights to other remedies available in connection with the material breach.
9.3. Effect of Termination. Upon termination of the Subscription Term, or this Agreement and the Services, as applicable, (i) all subscriptions, rights, and licenses granted herein, and all services provided by Fairgen shall terminate immediately; (ii) each Party shall return the other Party all Confidential Information in its possession, custody, or control; provided that Fairgen may be permitted to retain a copy of the Confidential Information according to Fairgen’s general backup policy until it is deleted as part of its standard deletion processes; and (iii) Customer shall remit in full all payments due to Fairgen, accruing prior to the date thereof, according to this Agreement and Order(s). No termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of termination or entitle Customer to any refund or credit.
9.4. Survival. Any terms and conditions which by their nature extend beyond the expiration or termination of the Agreement and/or Order(s) shall survive the termination or expiration.
10. Representations and Warranties. Each Party represents and warrants that (i) it has the full corporate right, power, and authority to enter into this Agreement and to perform under this Agreement; (ii) the execution of this Agreement and performance under this Agreement do not and shall not violate any other agreement to which it is a party; (iii) the individual executing this Agreement on behalf of a Party has authority to bind such Party to this Agreement and the performance hereof; and (iv) the execution of this Agreement and performance of its obligations and responsibilities under this Agreement do not, and will not, require any consent, approval, order or authorization of any individual, corporation, partnership, business association or other entity that has not been, or will not have been obtained by such Party prior to the execution of this Agreement.
11. Limited Warranty
11.1. Subject to this Agreement, Fairgen warrants, for the Customer’s benefit alone, that during the Term the Solution shall substantially perform in conformance with its Documentation. Except as set forth in this Section 11.1, Fairgen does not warrant or guarantee that the Solution will operate uninterrupted or be free of bugs or errors. The warranty in this Section does not cover, and Fairgen shall have no responsibility or liability for problems caused by modifications or customizations to the Solution made by anyone else but Fairgen, events beyond Fairgen’s reasonable control, and/or issues caused by low-performance of Customer’s or Users’ computers, systems, servers, or Internet connections.
11.2. For any violation of the warranty contained in Section 11.1 above, Customer’s exclusive remedy, and Fairgen’s entire and sole liability, shall be to use reasonable commercial efforts to repair or adjust the Solution so that they operate as warranted; provided that (i) the Customer has fully paid all applicable Fees, (ii) Customer is not otherwise in breach or violation of this Agreement, and (iii) Customer has reported in writing to Fairgen the claimed failure promptly upon discovery.
12. Intellectual Property.
12.1. Any ideas, inventions, improvements, technology, designs, software, algorithms, documents, and other materials, and any derivative works, modifications, techniques, or works of authorship in any form, or any other intangible assets or intellectual property, including any patents, copyrights, trademarks, trade secrets, mask works or other intellectual property rights therein (collectively, “Intellectual Property”), which may be included in or relate to the Services, is owned by Fairgen and its licensors, shall remain at all times owned by Fairgen and its licensors and is protected by copyright law, patent law, and/or other laws protecting intellectual property rights and international treaty provisions. No license, express or implied, in or to the Intellectual Property of Fairgen, its Affiliates, or its licensors is granted to Customer under this Agreement, other than as explicitly stated hereunder.
12.2. In the course of the provision of the Services hereunder and in connection with Customer’s use of the Services, Customer may make suggestions or provide inputs and ideas relating to the Services (“Feedback”), it is understood and agreed that Fairgen would own all such Feedback and any know-how or understanding derived therefrom. Accordingly, Customer hereby forever irrevocably assigns to Fairgen all of its right, title, and interest in the Feedback. Any Feedback is provided “as is” without any representation of warranty.
13. Indemnification.
13.1. Fairgen agrees to defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, employees, and agents (the “Customer Indemnitee”) from and against all costs, damages, losses, and expenses, including reasonable attorneys’ fees and other legal expenses actually awarded by a court of competent jurisdiction, arising from any third-party claims alleging that the Solution, as delivered by Fairgen and used in accordance with the terms of this Agreement, infringes any third-party intellectual property rights.
13.2. Customer agrees to defend, indemnify, and hold harmless Fairgen and its officers, directors, shareholders, employees, and agents (the “Fairgen Indemnitee”) from and against all costs, damages, losses, and expenses, including reasonable attorneys’ fees and other legal expenses actually awarded by a court of competent jurisdiction, arising from any third-party claims alleging that the Data or Customer Personal Data, as delivered by Customer and used in accordance with the terms of this Agreement, infringes any third-party rights.
13.3. As a condition to the defense and indemnity set forth above, the Customer Indemnitee or Fairgen Indemnitee, as applicable (“Indemnitee”), shall give the indemnifying Party prompt notice of any such claim made against it and the indemnifying Party shall be entitled, by written notice to such Indemnitee, to assume sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof (collectively, “Claim”), at its own expense, provided that no settlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of the applicable Indemnitee may be agreed to by the applicable indemnifying Party without the prior written consent of applicable Indemnitee (not to be unreasonably withheld, delayed or conditioned); and (b) the indemnifying Party shall keep the applicable Indemnitee informed of the status and progress of such Claim, the defense thereof and/or settlement negotiations with respect thereto. The applicable Indemnitee shall give the indemnifying Party all reasonable assistance necessary in connection with such defense.
13.4. Notwithstanding anything to the contrary in this Agreement, if an injunction is obtained in connection with any third-party action against the Customer’s use of the Services, Fairgen may, at its commercially reasonable discretion; (i) obtain for Customer (at no cost to the Customer) the right to continue to use the Services; (ii) modify the Services so it is non-infringing; or (iii) replace the Services with non-infringing ones that comply with the Agreement, provided that such replacement is functionally equivalent. If none of the options (i), (ii) and (iii) can be reasonably provided by Fairgen, Fairgen shall have the right to terminate the Agreement upon thirty (30) days’ written notice. Section 13 states Fairgen’s entire liability and Customer’s exclusive remedy for any third-party claim for infringement.
14. Limitation of Liability.
14.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL OR EQUITABLE BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER INDIRECT COMMERCIAL DAMAGES OR LOSSES) ARISING IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.
14.2. EXCEPT FOR DAMAGES CAUSED DUE TO FAIRGEN’S SECURITY BREACH OR VIOLATION OF PRIVACY RIGHTS OF INDIVIDUALS (“LIABILITY EXCEPTION”) FAIRGEN’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID FOR THE SERVICES DURING THE TWELVE-MONTH PERIOD PRIOR TO AND GIVING RISE TO THE CLAIM AS SET FORTH IN THE APPLICABLE ORDER FORM. THE FOREGOING LIMITATION WILL NOT APPLY TO LIABILITY CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY FAIRGEN.
14.3. SOLELY AS IT RELATES TO LIABILITY EXCEPTION, THE TOTAL LIABILITY OF FAIRGEN (AND ITS EMPLOYEES, DIRECTORS, OFFICERS, AFFILIATES, SUCCESSORS, AND ASSIGNS), SHALL NOT, WHEN TAKEN TOGETHER IN THE AGGREGATE, EXCEED TWO TIMES (X2) OF THE FEES ACTUALLY PAID FOR THE SERVICES DURING THE TWELVE-MONTH PERIOD PRIOR TO AND GIVING RISE TO THE CLAIM.
14.4. Notwithstanding anything to the contrary, Fairgen may disclaim any obligation or liability under this Agreement, including under Sections 11 (Limited Warranty) and 13 (Indemnification) if arising from (a) the use of the Services or any part thereof in combination with any other software, data, or materials, not authorized for such use by Fairgen or not in accordance with the terms of this Agreement and the Documentation, if the relevant claim would not have occurred but for such use; (b) Customer’s failure to implement within a commercially reasonable time period any updates, upgrades, or new versions to the Solution provided by Fairgen; (c) integration and/or combination of the Services or any portion thereof with any third-party product or component not in accordance with this Agreement; or (d) the failure of the Customer to comply with the terms of this Agreement.
14.5. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11 (LIMITED WARRANTY) ABOVE, THE SERVICES, AND THE SOLUTION, INCLUDING ANY OUTPUTS, RESULTS, AND REPORTS DERIVED THEREFROM, ARE PROVIDED ON AN “AS IS” BASIS, AND FAIRGEN AND ITS AFFILIATES, DO NOT MAKE OR GIVE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, AND GUARANTIES, WHETHER ORAL OR WRITTEN, IMPLIED, EXPRESS OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO THE SERVICES.
15. General
15.1. Force Majeure. Neither Party shall be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such Party or its contractors, agents, or suppliers, including but not limited to utility or transmission failures, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
15.2. Parties’ Relations. The relationships of the Parties to this Agreement shall be that of independent contractors. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other.
15.3. Assignment. Neither Party may assign or transfer any rights or delegate any duties under this Agreement without the other Party’s prior written consent, except that a Party may, without the need for consent, assign this Agreement to any Affiliate and/or in connection with a sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this Section shall be void.
15.4. Publication. Customer hereby permits Fairgen to display Customer’s name and logo on its website and in marketing materials during the Term, and the Customer agrees to grant Fairgen permission to use pre-approved quotes and endorsements from Customer or its personnel for Fairgen’s marketing materials. The Customer may revoke this permission by providing written notice to Fairgen.
15.5. This Agreement, Orders, and any document explicitly referenced in this Agreement, constitute the entire understanding and agreement between the Parties and supersedes any and all prior discussions, agreements, promises, and correspondence, whether oral or written, with regard to the subject matter hereof or otherwise. This Agreement and any Order may not be amended except by a document in writing signed by both Fairgen and Customer. No failure, delay, or forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such Party’s rights and powers under this Agreement or operate as a waiver of any breach or nonperformance by either Party of any terms of conditions hereof. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and the unenforceable provision shall be enforced to the maximum extent permissible under applicable law. Nothing in this Agreement shall be construed or be deemed to create any rights or remedies in or for the benefit of any third party. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
15.6. Notices. All notices and other communications required or permitted hereunder to be given to a Party to this Agreement shall be in writing and shall be sent to the address indicated in the Order, or such other address as either Party specified in writing in advance. All notices shall be deemed to have been given (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party as set forth above, (ii) if sent by air courier, on the second (2) business day following the day such notice is delivered to the courier service, (iii) if sent by registered or certified mail, on the fourth (4) business day following the day such mailing is made, or (iv) if transmitted by means of recorded or electronic communication, on the business day following date of successful transmission.
15.7. Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of England and Wales, without regard to or application of conflicts of law rules or principles. All claims arising out of or relating to this Agreement will be brought exclusively in the courts of London, United Kingdom, and the Parties consent to personal jurisdiction in those courts.
Exhibit B - Services Level Agreement (SLA)
Except for terms defined herein, capitalized terms used and not defined herein shall have the meaning as set forth in the Agreement.
1. Subject to Partner’s compliance with the Agreement (including timely payment of all applicable payment and any other fees due and payable to Fairgen) during the Subscription Term under the applicable Order, Fairgen will provide the Customer with access to the Services on a twenty-four hour, seven days a week (24x7) basis at a rate of 98% Availability (“Availability”).
2. The Availability excludes scheduled outages for which Fairgen needs to perform regular technical maintenance, and in such event, Fairgen will notify the Customer at least forty-eight (48) hours prior to any anticipated downtime as part of the regularly scheduled maintenance downtime.
3. Scheduled maintenance is performed as required on weekdays between 8 p.m. and 8 a.m. CET or on weekends.
4. Response Times. In support of services outlined in this Exhibit B, Fairgen will respond to Services’ related incidents and/or requests submitted by the Customer within the following response times:
5. Exclusions.
(a) The Availability terms herein are applicable solely to the Services. The performance of the Customer and other third-party service providers is excluded from the service levels and Availability described in this SLA.
(b) The availability obligations hereunder shall not apply to any event that: (i) is caused by factors beyond Fairgen’s reasonable control (such as broad service outage); (ii) resulted from Customer’s software or hardware, as well as any events caused by the partner’s own management or misuse of the Services and/or from Customer’s service; (iii) resulted from abuse or misuse of the Customer (or on behalf of the Customer) or Users in violation of the Agreement or Fairgen’s reasonable instructions, or other behaviors of unrelated third parties; (iv) resulted from downtime of Fairgen’s third-party service providers; or (v) otherwise is explicitly excluded under this SLA.
6. THE CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY IN CASE OF BREACH BY FAIRGEN OF ITS AVAILABILITY OBLIGATIONS SET FORTH HEREIN, SHALL BE FAIRGEN’S USE OF REASONABLE EFFORT TO RESOLVE THE CRITICAL BUGS CAUSING SUCH BREACH.