11.1 Entire Agreement. This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, vendor form, invoices, policies, confirmation or similar form, even if signed by the parties hereafter, will have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement will control unless otherwise explicitly set forth in an Order Form. No modification, consent or waiver under this Agreement will be effective unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, USA, without regard to its conflicts of law provisions. Except as set forth in Section 10.3 below, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Austin, Texas, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.3 Remedies. Each party agrees that, in the event of any breach or threatened breach of Section 4 (Confidentiality), the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party will be entitled to seek injunctive and other equitable remedies in any competent court to prevent or restrain such breach or threatened breach, without the necessity of posting any bond or other surety.
11.4 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective physical or e-mail addresses stated herein or at such other address designated by written notice in accordance with this Section. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, epidemic or pandemic, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance will be excused or extended for the period of delay or inability to perform due to such occurrence.
11.6 Publicity. Borrower hereby grants to Setpoint Technologies a non-exclusive, royalty-free, limited license to use Borrower’s name, logo and trademark(s) (collectively “Trademarks”) on Setpoint Technologies’ website and in other marketing materials to identify Borrower as a customer, provided that Setpoint Technologies will: (a) only use Trademarks in the form and manner and in accordance with the quality standards and usage guidelines that Borrower specifically prescribes; and (b) immediately cease all use of the Trademarks upon termination of this Agreement for any reason. Borrower also agrees that Setpoint Technologies may issue press releases and publish testimonials and case studies with statements attributed to a named employee of Borrower.
11.7 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, Setpoint Technologies may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.
11.8 Independent Contractors. The parties will be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.