SAAS SERVICES AGREEMENT (NPO)
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE MASTER TERMS AND CONDITIONS (THIS “AGREEMENT”) OR BY EXECUTING AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE USING OR ACCESSING THE OVERFLOW PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OVERFLOW PLATFORM.
This Agreement, by and between Customer and Overflow App, Inc. (“Overflow”), is effective as of the date of Acceptance (the “Effective Date”) and governs Customer’s use of Overflow’s software-as-a-service platform that facilitates and automates charitable giving and donations between nonprofit organizations and donors, including any software, documentation or data related thereto (the “Overflow Platform”). This Agreement permits the parties to enter into order forms referencing this Agreement (“Order Form(s)”), which set forth the services ordered by Customer, specify the fees payable by Customer and may contain other terms and conditions.
1. ACCESS TO PLATFORM.
1.1 Access to Platform. Overflow will make the Overflow Platform available to Customer. Subject to the terms and conditions of this Agreement, Overflow hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the Overflow Platform solely for Customer’s internal business purposes. Overflow will provide Customer with username(s) and password(s) pursuant to which Customer may access the Overflow Platform. Customer will be responsible for any actions taken by parties with access to such usernames and passwords, and Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform Overflow immediately if it discovers that any such username and/or password has been disclosed or made available to a third party.
1.2 Permitted Users. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Overflow account. Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number, if any, designated in the Order Form. Use of and access to Overflow Platform is permitted only by the number of users specified in the applicable Order Form, if a maximum number is designated therein (each, with the administrative user, the “Permitted Users”). ”). If Customer’s use of the Overflow Platform and related services exceeds any applicable limitations on usage set forth on the Order Form (including, but not limited to, Customer exceeding its designated number of Permitted Users) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in accordance with the terms and conditions of this Agreement. The Permitted Users will receive user IDs and passwords to access the Overflow Platform. These credentials are granted to individual, named persons and may not be shared. Customer will ensure that all Permitted Users keep these credentials strictly confidential. Customer is responsible for any and all actions taken by Permitted Users or by anyone using Customer’s accounts and passwords, and will remain responsible for compliance by each of its Permitted Users with all of the terms and conditions of this Agreement, and any use of the Overflow Platform by Permitted Users must be for the sole benefit of Customer. Use of Overflow Platform by all Permitted Users in the aggregate must be within the restrictions in the applicable Order Form.
1.3 License Restrictions and Responsibilities. Customer will not use the Overflow Platform for any purpose other than the purposes expressly set forth herein. Customer may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Overflow Platform; (b) modify, translate, or create derivative works based on the Overflow Platform (except to the extent expressly permitted by Overflow); (c) use the Overflow Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Overflow Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.
1.4 License to Customer Data. Customer hereby grants to Overflow: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the electronic data or information submitted or uploaded by Customer on the Overflow Platform (the “Customer Data”) solely to exercise its rights and perform its obligations under this Agreement; and (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the Customer Data for Overflow’s business purposes; provided, that, Overflow may only share the Customer Data with third parties to the extent such Customer Data is aggregated and/or anonymized such that the identity of Customer and/or its individual clients cannot be determined by such third parties.
1.5 Evaluation Services. From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. Evaluation Services are for Customer’s internal evaluation purposes only and are provided “as is” without warranty of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date. Overflow may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Overflow will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
1.6 ACH/Debit/Credit Processing. Cash donation processing services (ACH/Debit/Credit Processing) on the Platform, if applicable, are provided by Stripe and subject to the Stripe terms and conditions and other policies available at Services Agreement and the Stripe Connected Account Agreement. By executing this Agreement, Customers that use the cash donation processing services on the Platform also agree to be bound by the Services Agreement and Stripe Connected Account Agreement as applicable, as the Services Agreement and Stripe Connected Account Agreement may be modified by Stripe from time to time.
2. Proprietary Rights.
2.1 Overflow Technology. Customer acknowledges and agrees that, as between the parties, Overflow retains all right, title and interest in and to the Overflow Platform and all intellectual property rights therein and thereto. Overflow grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Overflow Platform. Customer will acquire no right, title, or interest in and to the Overflow Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Data.
2.2 Customer Data; Obligations.
(a) For purposes of this Agreement, “Customer Data” means any business information or other data which Customer inputs, or provides to Overflow for inputting, into the Overflow Platform.
(b) Customer shall ensure that Customer’s use of Overflow Platform and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Overflow that Customer has sufficient rights in the Customer Data to authorize Overflow to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data and its use hereunder will not violate or infringe the rights of any third party.
(c) As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Overflow. Subject to the terms of this Agreement, Customer hereby grants to Overflow a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, distribute, perform and display (including publicly), modify and create derivative works of the Customer Data solely to the extent necessary to provide the services contemplated under this Agreement and the applicable Order Form.
(d) In addition to the license rights in Section 2.2(c), Overflow may aggregate Customer’s metadata and usage data so that the results are non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”). Customer acknowledges that Overflow may use the Aggregated Anonymous Data (i) for its own internal, statistical analysis, (ii) to develop and improve the Overflow Platform and Overflow’s products and services, and (iii) to create and distribute reports and other materials regarding use of Overflow Platform. For clarity, nothing in this Section 2.2(d) gives Overflow the right to publicly identify Customer as the source of any Aggregated Anonymous Data without Customer’s prior written condition.
2.3 Publicity. Customer agrees that Overflow may refer to Customer’s name and trademarks in Overflow’s marketing materials and website; however, Overflow will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
2.4 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Overflow with respect to the Overflow Platform or Evaluation Services. Overflow will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to Overflow a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
3. Data Security. Overflow will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data uploaded by or on behalf of Customer to the Overflow Platform; (ii) protect against threats or hazards to the security or integrity of customer data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Overflow will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the applicable documentation at https://www.overflow.co/security.
4. FEES; PAYMENT TERMS.
4.1 Fees. Customer will pay to Overflow any fees set forth on the Order Form in accordance with the terms and conditions set forth herein.
4.2 Payment Terms. During the applicable Term and in accordance with this Agreement the applicable Order Form, you authorize Overflow to charge your payment instrument. Customer represents and warrants to Overflow that all information Customer provides about Customer’s payment instruments and/or bank accounts is true and that Customer us authorized to use such payment instrument and/or bank account, as applicable. Customer will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. Payment obligations are non-cancelable and fees paid are non-refundable. Overflow may change the price of the Overflow Platform or its related products and services that Customer has selected. If the price of a specific product or service is increased, then Overflow will provide Customer with written notice via email at least sixty (60) days prior to the Renewal Term in which the price increase shall apply. If payment of any fees are not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law. If any past due payment has not been received by Overflow within thirty (30) days from the time such payment is due, Overflow may suspend access to the Overflow Platform until such payment is made.
4.3 Net of Taxes. All amounts payable by Customer to Overflow hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and Platform taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Overflow. Customer will not withhold any Taxes from any amounts due to Overflow. Customer shall have the right, and the sole responsibility, to share copies of any of Customer’s tax exempt certificates. To the extent Customer shares any such tax exempt certificates, Customer shall promptly notify Overflow of any changes to the status of the certificates and promptly provide updated copies.
5. TERM; TERMINATION.
5.1 Term; Termination. Subject to earlier termination as set forth in this Agreement, the term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form (the “Initial Term”), and shall automatically renew for additional one (1) year periods unless either Party provides written notice of non-renewal at least forty-five (45) days prior to the end of the then-current term (each a “Renewal Term”, and collectively, the “Term”). In addition, a Party may terminate this Agreement immediately if the other Party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.
5.2 Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights with respect to the Overflow Platform will immediately terminate, and Customer will (a) cease use of the Overflow Platform; (b) return to Overflow or destroy, in Overflow’ sole discretion, all copies or other embodiments of Overflow’s Confidential Information; and (c) pay to Overflow all amounts due and owing under this Agreement.
5.3 Survival. Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.3 (License Restrictions and Responsibilities), 1.4 (License to Customer Data), 2 (Proprietary Rights), 4 (Fees; Payment Terms), 5 (Term; Termination), 6 (Confidentiality), 7.2 (Disclaimer), 9 (Limitations of Liability), 10 (Indemnification) and 12 (General) will survive.
6.1 Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 6.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 6.2. For the avoidance of doubt, the Overflow Platform is Confidential Information of Overflow.
6.2 Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
6.3 Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
6.4 Disclosures Required by Law. Confidential Information of the Disclosing Party may be disclosed to the extent required by applicable laws or regulations or as ordered by a court or other regulatory body, provided the Recipient must give reasonable notice thereof to the Discloser (other than routine filings with regulatory bodies) so the Discloser may seek confidential protection. In the event no confidential protection is obtained, the Recipient agrees to disclose only that portion of the Confidential Information it is legally required to disclose and to exercise all reasonable efforts to obtain confidential treatment for such Confidential Information.
7. REPRESENTATIONS and WARRANTIES; DISCLAIMER.
7.1 Representations and Warranties.
(a) Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. Overflow will use reasonable efforts consistent with prevailing industry standards to maintain the Overflow Platform in a manner which minimizes errors and interruptions. Notwithstanding the foregoing, the Overflow Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Overflow or by third-party providers, or because of other causes beyond Overflow’s reasonable control, but Overflow will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
(b) Customer further represents and warrants to Overflow that (a) Customer is a nonprofit corporation exempt from tax under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) and classified as a public charity; (b) Customer is solely responsible for maintaining its tax exempt status and classification as a public charity at all times during the term of this Agreement; (c) Customer is, and will be at all times during the term of this Agreement, in compliance with all laws and regulations; (d) Customer is in compliance with all applicable laws and regulations relating to the solicitation and receipt of charitable contributions, including obtaining and maintaining any licenses or registrations required to solicit or receive charitable contributions, and Customer will be solely responsible for maintaining such compliance at all times during the term of the Agreement; (e) Customer is solely responsible for satisfying all requirements in connection with any donation, including, but not limited to, sending any and all donor receipts, acknowledgement letters, etc., including but not limited to all substantiation requirements under Code Section 170(f); and (f) Customer understands and acknowledges that (i) the Overflow Platform and services provided by Overflow are administrative platforms only and that the Overflow Platform and services merely provide the technology for would-be-donors to make potential donations; (ii) the existence of the Overflow Platform and services is not a solicitation of donations by Overflow and Overflow does not engage in any solicitation activities, or consult on the solicitation of contributions from the public, on behalf of any individual, entity or organizations; (iii) by using the Overflow Platform and the services, Customer understands and agrees that Overflow shall not be responsible for Customer’s use of any donations or the amount of funds that may be raised by Customer; and (iv) Overflow is not a broker, agent, financial institution, creditor or 501(c)(3) nonprofit corporation.
(c) Customer shall promptly notify Overflow in writing in the event of any change in the status of any of the representations and warranties in Section 7.1(a) or (b).
7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE OVERFLOW PLATFORM AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE OVERFLOW PLATFORM ARE PROVIDED ON AN “AS-IS” BASIS AND OVERFLOW DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. OVERFLOW EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. OVERFLOW DOES NOT WARRANT THAT THE OVERFLOW PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE OVERFLOW PLATFORM AND THE RELATED PRODUCTS AND SERVICES WILL BE SECURE OR UNINTERRUPTED.
8. Limitations of Liability.
8.1 Disclaimer of Consequential Damages. EXCEPT FOR (1) CUSTOMER’S BREACH OF SECTION 1.3 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (2) CUSTOMER’S BREACH OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 7.1(b) OR (c), AND (3) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
8.2 General Cap on Liability. EXCEPT FOR (1) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (2) AND CUSTOMER’S BREACH OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 7.1(b) OR (c), (3) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 10.1 AND 10.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO OVERFLOW UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9.1 Indemnification by Overflow. Overflow will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Overflow Platform infringes any United States copyright (except for claims for which Overflow is entitled to indemnification under Section 10.2, in which case Overflow will have no indemnification obligations with respect to such claim). If Customer’s use of Overflow Platform and related services is, or in Overflow’s opinion is likely to be, enjoined due to the type of infringement specified above, if required by settlement, or if Overflow determines such actions are reasonably necessary to avoid material liability, Overflow may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using Overflow Platform; or if (i) and (ii) are not commercially reasonable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the term which was paid by Customer but not rendered by Overflow. Overflow will have no liability or obligation under this Section 10.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Overflow Platform by any party other than Overflow; (b) the combination, operation, or use of the Overflow Platform with other product(s), data or services where the Overflow Platform would not by itself be infringing; or (c) unauthorized or improper use of the Overflow Platform. This Section 10.1 states Overflow’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
9.2 Indemnification by Customer. Customer will indemnify, defend and hold Overflow and the officers, directors, agents, and employees of Overflow (“Overflow Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Overflow Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with any use by Customer of the Overflow Platform in violation of this Agreement.
9.3 Action in Response to Potential Infringement. If the use of the Overflow Platform by Customer has become, or in Overflow’s opinion is likely to become, the subject of any claim of infringement, Overflow may at its option and expense (a) procure for Customer the right to continue using the Overflow Platform as set forth hereunder; (b) replace or modify the Overflow Platform to make it non-infringing so long as the Overflow Platform has at least equivalent functionality; (c) substitute an equivalent for the Overflow Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
9.4 Indemnification Procedure. If a Customer Indemnified Party or an Overflow Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
10. GOVERNMENT MATTERS. Customer may not remove or export from the United States or allow the export or re-export of the Overflow Platform, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Overflow Platform (including the software, documentation and data related thereto) are “commercial items” and according to DFAR Section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11. GENERAL. The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, 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. Neither Party may assign this Agreement without the other Party’s prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise, provided that, in the case of the Customer any such affiliate or successor to all or substantially all of the business or assets must be exempt from tax as a 501(c)(3) public charity and be able to itself make all of the Customer representations and warranties in this Agreement. Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement and the Order Form are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Order Form, the terms of this Agreement will prevail, unless the Order Form expressly amends a provision in this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the recipient’s address set forth above and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Overflow Platform will cause irreparable harm and injury to Overflow for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Overflow will be entitled to injunctive relief in the event Customer uses the Overflow Platform in violation of the limited license granted herein or uses the Overflow Platform in any way not expressly permitted by this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement may not be amended in any respect other than by written instrument executed by the party against whom enforcement is sought.