9.1 Entire Agreement. This Agreement (including any applicable Order Document) constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation, or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Delivery of a copy of this Agreement bearing an original signature by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document bearing the original signature. No changes, modifications or waivers may be made to this Agreement 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. Except as specifically 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. 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.
9.2 Publicity. Customer hereby consents to OtterTune’s inclusion of its name in customer listings that may be published as part of OtterTune’s marketing efforts.
9.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Pennsylvania having jurisdiction over OtterTune’s facility, and both parties consent to the jurisdiction of such courts with respect to any such action.
9.4 Relief. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.
9.5 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses first stated above or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or 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.
9.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. OtterTune may also subcontract performance of any Service. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
9.7 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained 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.
9.8 No Interference. During the term of this Agreement and for 1 year thereafter, Customer will not directly or indirectly recruit, employ, or retain any employee of OtterTune, or otherwise solicit, induce or influence any employee to leave their employment with OtterTune, or attempt to do so.
9.9 Force Majeure. No damages shall be due for a failure of performance occurring due to Acts of God, war, terrorist act, government regulation, governmental travel advisories or restrictions, or other government acts, curtailment of transportation facilities, riots, disaster, fire or other casualty, epidemic, pandemic, power interruption or failure, strikes or other labor action, or any other cause outside the reasonable control of the party asserting force majeure (“Force Majeure”), which makes performance illegal, impossible or commercially impracticable, provided that the party seeking such relief from nonperformance makes reasonable efforts to overcome any such occurrences and promptly notifies the other party in writing of such circumstances.
If you have any questions regarding this EULA, you may contact OtterTune, Inc. at firstname.lastname@example.org.