SERVICES AGREEMENT
This Services Agreement (this “Agreement”), is made and effective as of the date the Customer completes its order of Services (the “Effective Date”), by iPondr SBC, a Minnesota special benefits corporation, (“iPondr”) and the person or entity purchasing iPondr services (“Customer”).
1. DEFINITIONS.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Users to access the iPondr Service.
1.2 “Administrative User” means the Customer employees and independent contractors that are authorized to contact or use the support services described in Section 2.5 below.
1.3 “Analytics” means statistics, metrics, and other analyses that are based on or derived from the Service, Platform, or Services Data and other related systems and technologies (including without limitation, aggregate measurements of Services usage and performance relating to Customer’s and its Users use thereof).
1.4 “Confidential Information” has the meaning set forth in Section 4.1.
1.5 “Documentation” means any user instructions, help information, training materials, and other documentation regarding the Services (if any) that are made available by iPondr to Customer in electronic or other form.
1.6 “iPondr Properties” means all iPondr Confidential Information, Analytics, Documentation, deliverables, reports, the Platform, and Service.
1.7 “Platform” means the technology platform/application developed and/or used by iPondr in providing the Services (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, dashboards, tools, utilities, content, templates, forms, samples, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations, and information), and including all corrections, improvements, extensions and modifications thereto and new versions thereof, including the website located at www.iPondr.com, and the content hosted thereon.
1.8 “Services” means the iPondr software application and services purchased through the Platform that is made available for access and use, as such application may be hosted, branded, and updated or modified by iPondr from time to time.
1.9 “Services Data” means any information and data provided by or obtained from Customer and Users in connection with all uses of the Service.
1.10 “Technical Assistance” means the provision of online and telephone responses to questions from eligible support recipients related to Customer’s use of the iPondr Services.
2. SERVICES.
2.1. Account. Customer and its Administrative Users will be responsible to provide access to the Services for its personnel designated by Customer (“Users”) to use the Services through a Customer-specific account (“Account”). Each User will have and use a unique identifier to access the Services. Customer is solely responsible for maintaining the confidentiality of all Account information (including access credentials), and will be fully liable for any and all activities under its Account. Customer agrees to keep all Account information up-to-date and to notify iPondr (a) immediately of any unauthorized use of its Account or any other breach of security and (b) promptly of any User or Administrative User who is non-active for any reason, including withdrawal by Customer of authorization granted to any User or Administrative User to access the Services. Except as required by applicable law, Customer will not permit any third party (other than Users and Administrative Users) to access or use the Services without iPondr’s prior written consent. Customer will notify iPondr promptly if (i) any person or entity claims to offer a service or system that “integrates with'' the Services or (ii) any claims by a third party that it needs to access or use the Services pursuant to a requirement of law. All Users and Administrative Users must agree to our Terms of Use located at https://iPondr.com/terms, as amended from time to time.
2.2 License. Subject to all terms and conditions in this Agreement, iPondr hereby grants Customer a nonexclusive, nontransferable right and license, without the right to sublicense, to access and use the Services and Platform (and to permit Users and Administrative Users to access the Services under its Account) in each case, solely for its internal purposes. Customer's access and use of the iPondr Properties must at all times comply with all other conditions set forth in this Agreement. Depending on the Services or type of access to the Platform purchased by Customer, iPondr may grant certain rights to Customer to use iPondr’s trademarks to promote use of the Services and Platform to the Users. If iPondr grants such a license to Customer, Customer agrees and understands that such license will be a nonexclusive, non transferable license to use the specified trademarks only for such purposes.
2.3 Systems. As between the parties, Customer is solely responsible for (a) the network and communications systems and services needed to manage the Services Data and to access and use the Services and (b) backup, recovery, network security and maintenance services for its systems (collectively, the “Customer Systems”). Customer is responsible for backing-up and otherwise protecting all Services Data and uploading, downloading or transmitting any data via the Services. Customer must ensure that each of its Users and Administrative Users comply with all obligations of Customer under this Agreement and under applicable law. Any breach of any such obligations is a material breach by Customer of this Agreement, and Customer is liable for any such breach by any User or Administrative User. iPondr may revoke credentials to the Services if a User or Administrative User breaches any obligations of Customer, and iPondr may suspend access to the Services if iPondr reasonably suspects that a User or Administrative User has breached any obligations of Customer.
2.4 Support
(a) Support. Subject to the terms and conditions of this Agreement, iPondr will exercise reasonable efforts to provide Technical Assistance and support to Users and Administrative Users for the use of the Services during iPondr’s ordinary and customary business hours in accordance with its standard policies and procedures. Customer acknowledges and agrees that from time to time the Platform or Services may undergo maintenance and iPondr does not guarantee that the Platform or Services will be available at any given time.
(b) Access. As a condition of iPondr’s obligations under Section 2.4(a), Customer must provide such information and/or access to Customer resources as iPondr may reasonably require to provide Technical Assistance under this Agreement. iPondr will be excused from any non-performance of its obligations hereunder to the extent any such non-performance is caused by Customer’s failure to perform its obligations under this Section 2.4(b).
2.5 Data. Customer agrees to comply with all laws, regulations and rules regarding the use, confidentiality and security of personally identifiable information (collectively, “Personal Information”), to the extent any such law, regulation or rule is applicable to its performance under this Agreement.
The Services Data (other than Analytics relating thereto) is, as between iPondr and Customer, the property of Customer. Customer (on behalf of itself and its Users) grants iPondr a non-exclusive, worldwide, royalty-free and fully paid right and license (a) to access, copy, store, process, distribute, transmit, display, and otherwise use the Services Data as necessary for purposes of providing and improving the Services to Customer and its Users (including Supervisory Access Users and Third Party Partner Users, each as defined below) and enabling the operation of the Platform, and otherwise as necessary to perform its obligations hereunder, and (b) to use the Customer’s trademarks, service marks, and logos as required to provide the Services.
Notwithstanding anything to the contrary herein, Customer (on behalf of itself and its Users) acknowledges and agrees that iPondr may: (a) collect, use, and analyze Analytics, and iPondr may (during and after the term of this Agreement) (i) use Analytics to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other iPondr Properties, and (ii) disclose, sublicense, market, sell, and otherwise use and commercially exploit Analytics in aggregate or other de-identified form in connection with its business; (b) disclose and provide access to Services Data (including Services Data that contains Personal Information or is otherwise associated with individual Users), whether or not aggregated or de-identified, (i) to certain other Users who have been granted supervisory or other special access by Customer (“Supervisory Access Users”), who may access, use, copy, modify, prepare derivatives, and share with other Customer or other Supervisory Access Users such Services Data in connection with the Service, and (ii) to certain third party partners of iPondr or Customer who have been granted special access by Customer (“Third Party Partner Users”), who may access, use, copy, modify, prepare derivatives, and share with Customer Supervisory Access Users, such Services Data in connection with the Service; (c) use Services Data to protect the rights, property or safety of iPondr or others or to investigate or enforce suspected breaches of this Agreement; and (d) use Services Data as otherwise provided in this Agreement or as otherwise mutually agreed upon by the parties.
Customer acknowledges and agrees that once iPondr has granted access rights to the Services Data to a User, Supervisory Access User, and/or a Third Party Partner User, iPondr has no control over the uses and disclosures that the User, Supervisory Access User, and/or Third Party Partner User makes of Services Data, and Customer and such individuals or entities may be subject to legal or regulatory obligations to retain and protect such information and make such information available to governmental authorities and others as required by applicable law or regulation. In any event, but especially in cases of potential fraud, misuse or abuse of the Services, iPondr reserves the right, in its sole judgment, to revoke, remove, cancel or deny continued access by any User, Supervisory Access User, or Third Party Partner User to any Services Data.
2.6 Third Party Software. Customer may not upload or use any software on or in connection with the Platform that has not been authorized in writing by iPondr. If such third party software has been authorized by iPondr, iPondr disclaims all warranties with respect to such software, assumes no liability regarding the use of such software, and will not furnish any support or services relating to such software, unless otherwise agreed upon by iPondr and the applicable third party in a separate written agreement. Customer may have to enter into separate written agreements with the applicable third parties for use of such third-party software, and in so doing, Customer will comply with all such agreements. iPondr may also make available optional services provided by third parties. Customer will comply with and, upon request, execute, any agreements that may be required for the use of such services. Additionally, Customer’s use of the Services or of such third-party products or services will constitute Customer’s agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.]
2.7 Conversion of User Accounts. If this Agreement is terminated by either party for any reason, iPondr may, at its option, convert any or all User Accounts into unpaid individual iPondr accounts.
2.8 Communications with Users. Customer understands and agrees that iPondr may need to communicate directly with Users to provide access to the Platform and Services and authorizes iPondr to do so. At Customer’s request, iPondr may send communications to the Users through any contact method provided by Customer or any such User.
3. PAYMENTS.
3.1 Fee Payment. Customer must pay iPondr the fees, costs and expenses associated with the Services Customer selected on the Platform when entering into this Agreement, in the amounts and at the times set forth therein, and as otherwise stated in this Agreement.
3.2 Recurring Payments. Customer will be billed at the frequency specified on the iPondr@Work Quote (the Quote) for the Services. Customer agrees that iPondr may continue to bill for the Services until this Agreement is terminated with the payment information provided by Customer. Customer agrees to always keep its payment information current.
3.3 Invoice. If Customer is invoiced for access to the Services and Platform, payment is due on receipt.
4. CONFIDENTIALITY.
4.1 Scope. The term “Confidential Information” means all trade secrets, know-how, inventions, developments, software, source code, ideas and other financial, business or technical information disclosed by or for a party in relation to this Agreement. The restrictions on use and disclosure of Confidential Information will not apply to any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. The iPondr Properties and pricing information are Confidential Information of iPondr.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation, the receiving party may not access, reproduce, use or disclose any of the disclosing party’s Confidential Information without its written consent, and must use reasonable care to protect the other's Confidential Information from unauthorized access, use and disclosure (including by ensuring that its employees and contractors who access any Confidential Information have a need to know for the permitted purpose and are bound by obligations that are at least as protective as this Agreement). Each party is responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, audit, financing transaction or due diligence inquiry, so long as the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
5. PROPRIETARY RIGHTS.
5.1 iPondr Properties. Except for the limited rights and licenses to access and use the Services, Platform and Documentation expressly granted hereunder, no other license is granted, no other use is permitted and iPondr (and its licensors) retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the iPondr Properties.
5.2 Restrictions. Customer may not, directly or indirectly (a) use any iPondr Properties to create any software, platform, service or documentation that is similar to any iPondr Properties, (b) attempt to access any component of any iPondr Properties or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of any iPondr Properties, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any iPondr Properties in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any iPondr Properties, (e) use or permit the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) disseminate benchmark performance information or analysis for purposes other than internal issue resolution or as requested by iPondr, (g) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services,(h) conduct any penetration or similar testing of any iPondr Properties, or (h) permit any third party to do any of the foregoing.
5.3 Feedback. Customer agrees that iPondr is free to use in any manner all comments, suggestions and other feedback made by Customer and the Users and other knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the iPondr Properties acquired while providing the Services under this Agreement, including but not limited to improve and enhance the iPondr Platform and Services without payment to Customer or Users in any form.
6. LIMITED WARRANTIES AND DISCLAIMERS.
6.1 Customer. Customer represents and warrants to iPondr that the access, transfer, collection, processing, distribution and use of Services Data as described in this Agreement will not violate any applicable law, regulation or proprietary right (including without limitation, rights regarding privacy, publicity and defamation). In addition, Customer represents and warrants that (a) its use of the Services complies with all applicable law and regulations and (b) Customer’s business, and the services that Customer (and its employees and independent contractors) perform, will be conducted in a professional and workmanlike manner and in accordance with all industry standards and all applicable laws and regulations.
6.2 iPondr. iPondr represents and warrants that it will use reasonable efforts to make the Services available at all times, subject to downtimes for scheduled maintenance, upgrades, repairs and emergency outages. Customer’s sole and exclusive remedy for any breach of the foregoing performance warranty is re-performance by iPondr in a conforming manner. iPondr will not be liable for any delay, degradation or failure in the Services resulting from or attributable to (a) unusually high usage volumes, (b) failures in any telecommunications services, networks or systems, (c) Customer’s or any User’s or other third party's acts or omissions, (d) any force majeure or other cause beyond its reasonable control or (e) unauthorized access to the Services.
6.3 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, iPONDR PROPERTIES, AND OTHER SERVICES PROVIDED BY OR ON BEHALF OF iPONDR, AND REPORTS, ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. iPONDR AND ITS LICENSORS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) iPONDR PROPERTIES OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF iPONDR, OR REPORTS WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) iPONDR PROPERTIES OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF iPONDR, OR REPORTS, WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR THAT ANY RESULT OR OUTCOME CAN BE ACHIEVED. TO THE FULLEST EXTENT PERMITTED BY LAW, iPONDRHEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO iPONDR PROPERTIES AND OTHER SERVICES PROVIDED BY OR ON BEHALF OF iPONDR AND REPORTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, USEFULNESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE.
CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATION OF THE ACCURACY OF ALL REPORTS AND OTHER OUTPUTS FROM THE SERVICES, ANY USE OR MISUSE OF SUCH REPORTS AND OTHER OUTPUTS OR ANY SERVICES GENERALLY, AND FOR PROTECTING ITS DATA FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING ROUTINE BACKUP PROCEDURES. CUSTOMER HEREBY WAIVES ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. CUSTOMER AGREES THAT AT ALL TIMES IT WILL HAVE READILY ACCESSIBLE COPIES OF ALL SERVICES DATA.
7. INDEMNIFICATION.
7.1 Customer. Customer agrees to defend iPondr against any demand, suit, action or other claim by any third party (including any User) that is related to any (a) Services Data, or (b) breach of Customer's representations, warranties and covenants, and to indemnify iPondr for any and all liabilities (resulting from settlements or judgment awards) based on such claims.
7.2 iPondr. iPondr agrees to defend Customer against any demand, suit, action or other claim by any third party that the Services misappropriate or infringes its U.S. intellectual property rights, and to indemnify Customer for liabilities (resulting from settlements or judgment awards) based on such claims. If the Services and/or Platform becomes or, in iPondr's opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, iPondr may, at its option: (a) obtain the rights needed to continue using the Services and/or Platform, or (b) replace or modify the Services and/or Platform so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available, then iPondr may at its option, and without any additional liability to Customer except as expressly set forth below, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. The foregoing states the entire liability of iPondr, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the iPondr Properties, any part thereof or their use or operation.
7.3 Exclusions. iPondr will have no liability or obligation hereunder with respect to any claim attributable to (a) any use of the Services and/or Platform not strictly in accord with this Agreement, or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) any use of the Services and/or Platform with any third party intellectual property not provided by the iPondr, or (b) alterations, combinations or enhancements of the Services and/or Platform not created by iPondr expressly for the use of Customer’s Users.
7.4 Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (provided the indemnifying party will only be relieved of its indemnification obligations to the extent it is materially prejudiced by the indemnified party’s failure to do any of the foregoing) and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the indemnified party's rights or interests without its prior written approval, not to be unreasonably withheld, conditioned or delayed. The indemnifying party will not be responsible for any settlement it does not approve in writing.
8. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH ANY BREACHES OF SECTIONS 2.1, 2.2, 2.3, 2.6, 2.7, 4, 5.2 OR 6.1 AND EXCEPT FOR THE PARTIES’ RESPECTIVE OBLIGATIONS AND LIABILITIES IN SECTION 7, IN NO EVENT WILL iPondr (OR ITS LICENSORS) OR CUSTOMER BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY: (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) TOTAL, CUMULATIVE, AGGREGATE LIABILITIES IN EXCESS OF THE FEES PAID OR PAYABLE TO iPondr DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. TERM AND TERMINATION.
9.1 Term. This Agreement commences on the Effective Date and continues in effect until terminated.
9.2 Termination.
(a) Customer can terminate this Agreement at any time by emailing iPondr’s customer service department at help@iPondratwork.com. In such event Customer will be billed for the remainder of the then-current month, as well as one additional month (for example, if Customer cancels on May 15, Customer will be billed for the remainder of May, as well as the entire month of June). If customer prepays fees, costs or expenses, for any set length of time, Customer will continue to have access to the Platform and Services through the last day of the agreed upon prepaid term, with no refund granted.
(b) iPondr can terminate this Agreement for any reason and at any time without notice. If iPondr terminates for any reason other than pursuant to Section 9.2(c) below, iPondr will refund Customer a pro rata amount for the then-current month.
(c) This Agreement may be terminated immediately by either party if the other party breaches any material provision of this Agreement and fails to cure such breach prior to termination by the non-breaching party.
9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties will cease, except that (a) Customer will immediately pay to iPondr any outstanding balance of fees due by Customer to iPondr; (b) Customer will cease all use of the Services and other iPondr Properties; and (c) all obligations that accrued prior to the effective date of termination, all remedies for any breach of this Agreement and the provisions of Sections 1, 2.5, 4, 5, 7, 8 and 10 will survive. Except as otherwise specifically set forth in this Agreement, termination is not the sole remedy and, whether or not termination takes effect, all other remedies remain available except as otherwise expressly limited by this Agreement.
10. GENERAL PROVISIONS.
10.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements between the parties regarding the subject matter of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be an original, but taken together constituting one and the same instrument. Execution of a facsimile copy (including PDF or other electronic copy) will have the same force and effect as execution of an original, and a facsimile or digital signature will be deemed an original and valid signature. Any additional, different or inconsistent terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, will have no effect on this Agreement. Except as expressly provided herein, no change, consent or waiver of this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights hereunder any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. 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.
10.2 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Minnesota, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations will govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction will apply to this Agreement. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Hennepin County, Minnesota, and both parties consent to the jurisdiction of such courts with respect to any such action. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event of any legal suit, action or proceeding in connection with this Agreement, the prevailing party in such legal suit, action or proceeding may recover from the other party, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including attorneys' fees and expenses and court costs.
10.3 Remedies. Except as expressly specified otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Sections 4 or 5, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party is entitled to seek injunctive and other equitable remedies, without the necessity of proving actual damages or posting any bond, and without resort to arbitration.
10.4 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer, nor does confer, upon any person or entity other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
10.5 Notices. All notices will be in writing, in English and delivered to the parties at their respective addresses stated herein, or at such other address designated by written notice. Notices will be deemed to have been duly given and effective when received, and will be personally delivered or sent by overnight courier or certified or registered mail, postage pre-paid, return receipt requested.
10.6 Publicity. Customer hereby consents to inclusion of its name and logos in customer lists and presentation materials that may be published and distributed as part of iPondr's press releases, marketing, and promotional efforts.
10.7 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, conditioned or delayed. However, without consent, iPondr may subcontract performance of all or any part of the services to be provided hereunder to any subcontractor (and disclose Services Data and Confidential Information of Customer to any such subcontractor for such purpose), and either party may assign this Agreement (and all of its rights and obligations hereunder) to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation, reorganization, change of control, or otherwise). This Agreement is binding upon, and inures to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
10.8 Independent Contractors. The parties are 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 ventures or partners for any purpose.