Stratezy Subscription Agreement
THIS AGREEMENT GOVERNS CUSTOMER’S USE OF IDEA5’S SERVICES. All Content and Services are subject to change. The Service is intended to provide Customer with access to a wide range of computational resources, most notably methods for various data searches at Customer’s request, and generating, analyzing, organizing and presenting data in customized presentations and visualizations.
IF YOU REGISTER FOR A FREE TRIAL FOR IDEA5’S SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT, ON BEHALF OF CUSTOMER’S USERS. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” OR “CUSTOMER’S” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on April 14, 2015. It is effective between Customer and idea5 as of the date of Customer accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Stratezy Subscription Agreement.
“Beta Services” means idea5 special services that may not be generally available to Customers.
“Content” means information obtained by idea5 from idea5’s content licensors or publicly available sources and provided to Customer.
“Customer” or “Customer’s” means the company or other legal entity for which you are accepting this Agreement, including any Affiliates of that company or entity.
“Documentation” means idea5’s documentation, and help and training materials, as updated from time to time.
“idea5” means idea5, LLC and its Affiliates.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and idea5, including any addenda and supplements thereto. By entering into an Order Form hereunder, Customer agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that Customer purchases a subscription to, as distinguished from those provided pursuant to a free trial.
“Standard Support” means product support services idea5 makes available as part of the Purchased Services.
“User ” means an individual who is authorized by Customer to use a Purchased Service, for whom Customer has ordered the Service, and to whom Customer (or idea5 at Customer’s request) has supplied a user identification and password.
2. FREE TRIAL
If Customer registers on Stratezy’s website for a free trial, idea5 will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Services ordered by Customer for such Service(s). Additional trial terms and conditions may appear on the Stratezy trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3. IDEA5 RESPONSIBILITIES
3.1. Provision of Purchased Services. idea5 will (a) make the Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide idea5 Standard Support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which idea5 shall give at least 8 hours electronic notice and which idea5 shall schedule to the extent practicable during the weekend hours between 8:00 p.m. Friday and 5:00 a.m. Monday Central time), and (ii) any unavailability caused by circumstances beyond idea5’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving idea5 employees), Internet service provider failure or delay, or denial of service attack.
3.2. Beta Services. From time to time, idea5 may invite Customer to try Beta Services at no additional charge. Customer may accept or decline any such trial at Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a new version of Stratezy has been released and becomes generally available. idea5 may discontinue Beta Services at any time in idea5’s sole discretion and may never make them generally available. idea5 will have no liability for Customer’s use of, or results derived from, a Beta Service.
4. USE OF SERVICES AND CONTENT
4.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased as subscriptions, (b) additional User subscriptions may be added during a subscription term at the then current Stratezy pricing, prorated for the portion of that subscription term remaining at the time the User subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon idea5 request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
4.3. Customer’s Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) use reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify idea5 promptly of any such unauthorized access or use, (c) use Services and Content only in accordance with the Documentation provided from time to time and applicable laws and government regulations, and (d) comply with the Stratezy Website Terms and Conditions of Use.
4.4. Usage Restrictions. Customer will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than Customer or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or in the Documentation, (j) access any Service or Content in order to build or offer a competitive product or service, (k) reverse engineer any Service (to the extent such restriction is permitted by law), (l) access the Services for purposes of monitoring the availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.5. Removal of Content. If idea5 is required by a licensor to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, idea5 may so notify Customer and in such event Customer will promptly remove such Content from Customer’s systems. If Customer does not take required action in accordance with the above, idea5 may disable the applicable Content until the potential violation is resolved.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. Customer will provide idea5 with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to idea5. If Customer provides credit card information to idea5, Customer authorizes idea5 to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card or ACH debit, idea5 will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due Net 30 days from the invoice date. If Customer elects to pay for Purchased Services with a credit card or ACH transaction, access codes to the Purchased Services will be provided to Customer once payment is processed and approved. If Customer elects to be invoiced, access codes will be provided when the invoice is generated. If payment on the invoice is not received by the due date, idea5 reserves the right to discontinue access to the Purchased Services. Customer is responsible for providing complete and accurate billing and contact information to idea5 and notifying idea5 of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by idea5 by the due date, then without limiting idea5’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) idea5 may condition future subscription renewals and Order Forms on payment termsdifferent than those specified in Section 5.2 (Invoicing and Payment), and/or (c) refuse to allow Customer to renew subscriptions or access Services or Content until Customer pays such invoiced amount .
5.4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for idea5’s services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized idea5 to charge to Customer’s credit card), idea5 may, without limiting idea5’s other rights and remedies, accelerate Customer’s unpaid fee obligations under all Customer agreements with idea5 so that all such obligations become immediately due and payable, and suspend idea5’s Services to Customer until such amounts are paid in full. idea5 will give Customer at least 7 days’ prior notice that Customer’s account is overdue, in accordance with Section 12.1 (Manner of Giving Notice), before suspending services to Customer.
5.5. Payment Disputes. idea5 will not exercise the rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6. Taxes. Customer is responsible for paying all value added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated with Customer’s purchases hereunder. If idea5 is required to pay or collect Taxes for which Customer is responsible under this Section 5.6, idea5 will invoice Customer and Customer will pay that amount unless Customer provide idea5 with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.7. Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by idea5 regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, idea5 and idea5’s licensors reserve all of idea5’s/their right, title and interest in and to the Services and Content, including all of idea5’s/their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. License by idea5 to Use Content. idea5 grants to Customer a worldwide, non-exclusive, non-sublicensable (except as expressly permitted herein) limited-term license, under idea5’s applicable intellectual property rights and licenses, to use Content acquired by Customer pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
6.3. License by Customer to Use Feedback . Customer grants to idea5 a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (” Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. idea5’s Confidential Information includes the Beta Services and Purchased Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement , and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
7.3. Compelled Disclosure . The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. idea5 Warranties. idea5 warrants that (a) idea5 will not materially decrease the overall security of the Purchased Services during a subscription term, (b) the Purchased Services will perform materially in accordance with the applicable Documentation, and (c) idea5 will not materially decrease the functionality of the Purchased Services during a subscription term. For any breach of an above warranty, Customer’s exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL CONTENT AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. IDEA5 DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by idea5. idea5 will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a ” Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives idea5 written notice of the Claim Against Customer, (b) gives idea5 sole control of the defense and settlement of the Claim Against Customer (except that idea5 may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives idea5 all reasonable assistance, at idea5’s expense. If idea5 receives information about an infringement or misappropriation claim related to a Service, idea5 may at idea5’s discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, without breaching idea5’s warranties under Section 8.2 (idea5 Warranties), (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer’s breach of this Agreement.
9.2. Indemnification by Customer. Customer will defend idea5 against any claim, demand, suit or proceeding made or brought against idea5 by a third party alleging that Customer’s use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against idea5”), and will indemnify idea5 from any damages, attorney fees and costs finally awarded against idea5 as a result of, or for any amounts paid by idea5 under a court-approved settlement of, a Claim Against idea5, provided idea5 (a) promptly gives Customer written notice of the Claim Against idea5, (b) gives Customer sole control of the defense and settlement of the Claim Against idea5 (except that Customer may not settle any Claim Against idea5 unless it unconditionally releases idea5 of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES). THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date Customer first accepts it and the subscription payment is received, and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless idea5 has given Customer written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
11.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 11.3 (Termination), idea5 will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by idea5 in accordance with Section 11.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms, and idea5 will not refund any prepaid fees . In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to idea5 for the period prior to the effective date of termination.
11.5. Surviving Provisions. Sections 5, 7, 8, 9, 10 and 12 Sections 6.1, 6.3, 11.4 and this 11.5 will survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer.
12.2. Agreement to Governing Law and Jurisdiction. This Agreement is bound by the laws of the State of Nebraska without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts in Douglas County, Nebraska.
12.3. Export Compliance. The Services, Content, other technology idea5 makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
12.4. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any idea5’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify idea5.
12.5. Entire Agreement and Order of Precedence. This Agreement, together with the Order Forms, Documentation, and the Stratezy Website Terms and Conditions Agreement, are the entire agreements between Customer and idea5 regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these agreements will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, (3) the Documentation, and (4) the Stratezy Website Terms and Conditions Agreement.
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if Customer is acquired by, sell s substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of idea5s’, then such other party may terminate this Agreement upon written notice. In the event of such a termination, idea5 will refund to Customer any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.8. Third-Party Beneficiaries. idea5’s Content licensors shall have the benefit of idea5’s rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
12.9. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.10. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.11. Attorney Fees. Customer will pay on demand all of idea5’s reasonable attorney fees and other costs incurred by idea5 to collect any fees or charges due idea5 under this Agreement following Customer’s breach of Section 5.2 (Invoicing and Payment).