Date of Last Revision: September 22, 2020
THESE TERMS OF SERVICE, ORDERS AND ALL DOCUMENTS AND POLICIES REFERENCED AND/OR INCORPORATED HEREIN (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE A LEGAL CONTRACT BETWEEN YOU (“YOU” OR “CUSTOMER,” EITHER AN INDIVIDUAL OR THE ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT) AND LIQUIBASE INC. d/b/a LIQUIBASE (“LIQUIBASE”) WHICH GOVERNS YOUR ACCESS TO AND USE OF THE HUB SERVICES THROUGH LIQUIBASE’S PLATFORM. BY SELECTING THE “ACCEPT” OR “I AGREE” OPTION AND ACCESSING AND USING THE Hub SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT “DECLINE” OR “CANCEL” AND YOU WILL NOT HAVE A LICENSE OR RIGHT TO ACCESS AND USE THE Hub SERVICES.
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. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF YOUR ACCEPTANCE OF THIS AGREEMENT (“EFFECTIVE DATE”). IF THIS AGREEMENT IS CONSIDERED TO BE AN OFFER BY LIQUIBASE, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN. For mutual consideration, receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
The terms of this Agreement will apply to your access to and use of the Hub Services, unless there is a separate signed agreement between Customer and Liquibase, in which event such separate signed agreement will apply. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the purchase of the Hub Services will have any effect on the rights, duties or obligations of the parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of Liquibase to object to such terms, provisions, or conditions.
The use of the Hub Services is subject to Liquibase’s Privacy Policy.
Liquibase may update or modify this Agreement from time to time, including any referenced Policies. If a revision meaningfully reduces Customer’s rights, then Liquibase will use reasonable efforts to notify Customer (for example, by sending an email to the billing contact, or posting a notice in Customer’s account). If Liquibase modifies this Agreement during the Subscription Term, then the modified version will be effective upon the start of Customer’s next Renewal Term; provided, however, that any Urgent Term will be effective immediately upon notice as of the “Date of Last Revision” noted at the top of this Agreement. An “Urgent Term” means a term that (a) is required by a third party, such as an infrastructure provider to Liquibase or a third party providing functionality, (b) addresses new functionality, or (c) in the reasonable opinion of Liquibase’s counsel, is required to comply with applicable law or might create legal liability for Liquibase if omitted. If an authorized Customer representative certifies in writing within 30 days’ notice of the Urgent Term modification that the Urgent Term modification is material and adverse to Customer, then Liquibase may elect in writing to (i) waive the Urgent Term modification for Customer, or (ii) provide Customer with 30 days to elect in writing whether to accept the Urgent Term modification despite the adversity or terminate this Agreement. In the event of such termination by Customer, Liquibase will provide a pro-rata refund of any prepaid unused fees paid by Customer before such termination.
Unless otherwise specified, all capitalized terms used in this Agreement have the meanings set forth on Exhibit A.
1. PROVISION OF HUB SERVICES.
1.1 Hub Services. Subject to the terms and conditions of this Agreement, Liquibase will make available to Customer the Hub Services on a non-exclusive, limited, revocable, non-transferable and non-sublicenseable basis only: (a) during the relevant Subscription Term, (b) internally for Customer’s own internal purposes, and not for resale or license to third parties, (c) subject to any applicable Usage Allowances, and (d) in accordance with any additional Hub Services rights and limitations specified on Liquibase’s website with respect to the Hub Services Ordered by Customer.
1.2 APIs. The Hub Services include and require the use of certain Liquibase Application Programming Interfaces (“API”) which are provided as part of the Hub Services.
1.3 Liquibase Core Applications. Customer understands and acknowledges that the Hub Services provide a reporting and status monitoring service with respect to the Liquibase Open Source and Liquibase Pro software products (each a “Core App” and together “Core Apps”) and (a) Hub Services will not work with or be useful with respect to any other products, (b) such Core Apps must be licensed by Customer pursuant to a separate written agreement with Liquibase, and Customer receives no rights to the Core Apps under this Agreement, (c) Customer is not required to send data to the Hub Services in order to retain Customer’s license to the Core Apps, and (d) despite Customer having a registered changelog with respect to the Core Apps, which by default sends data to the Hub Services, Customer may turn off the functionality that sends data to the Hub Services. The API key made available to Customer as part of the Hub Services is unique to Customer and is associated with Customer’s license to the applicable Core App and automatically limits the features in the Hub Services to be commensurate with Customer’s Core App license (i.e. the same number of Core App authorized projects and connections).
1.4 Restrictions. Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) copy, modify or create derivative works of the Hub Services, (b) publish, sublicense, sell, market or distribute the Hub Services; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the Hub Services; (d) use the Hub Services or associated documentation in violation of any applicable law, including export laws; (e) remove any proprietary notices from the Hub Services documentation or any other Liquibase materials furnished or made available hereunder; (f) use or access the Hub Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Hub Services; (g) make the Hub Services available to any third parties; (h) sell, resell, rent or lease the Hub Services, including using on a service bureau or time sharing basis; (i) interfere with or disrupt the integrity or performance of the Hub Services or any data contained therein; (j) attempt to gain unauthorized access to the Liquibase Platform or its related data, systems or networks; (k) use the Hub Services 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; (l) publish or disclose to third parties any evaluation of the Hub Services without Liquibase’s prior written consent; (m) publish or disclose to third parties any data or information on Customer’s results from using the Hub Services, without Liquibase’s prior written consent; (n) perform vulnerability, load or any other test of the Liquibase Platform without Liquibase’s prior written consent. Customer is responsible for compliance with the terms of this Agreement by anyone Customer authorizes to use the Hub Services on its behalf or otherwise.
1.5 No Other Rights. Except as expressly set forth in this Agreement, no additional rights are granted to Customer. Liquibase hereby reserves all rights not expressly granted to Customer under this Agreement.
2. DELIVERY AND ADMINISTRATION.
Hub Services will be deemed delivered to Customer upon the activation of the Hub Services at the commencement of the Subscription Term. Upon activation of the Hub Services, Customer will designate one or more administrators (“Account Administrator(s)”) for Customer’s account (“Customer Account”) and may change such account administrators from time to time. Customer is responsible for ensuring that the contact information for such account administrators is current and accurate.
3. SUPPORT SERVICES.
Liquibase will provide Support Services for the Hub Services at no additional charge (a) for the duration of the Subscription Term, and (b) to the extent and for the time period that Customer pays any fees for the Hub Services due hereunder. The Support Services to which Customer is entitled will be commensurate with the Support Services which are applicable to Customer’s license of the Core Apps.
4. PAYMENT.
4.1 Fees. Customer will pay the applicable fees specified in the Order, if any, in accordance with their terms and this Agreement. Unless otherwise expressly agreed in writing with Liquibase, all payments by Customer to Liquibase under this Agreement will be charged to the credit card Customer provides when purchasing the subscription to the Hub Services and are due and payable immediately. Customer understands that, unless Customer notifies Liquibase pursuant to the cancellation process specified below that Customer desires to terminate its subscription before the end of Customer’s then-current Subscription Term, Customer’s subscription will continue to automatically renew for successive terms of the same duration and Customer’s credit card will be charged for each such renewal at the subscription fee in effect at the time of that renewal. Customer will promptly notify Liquibase if any information related to Customer’s credit card changes or is no longer valid or of any other change to the information Customer provided Liquibase regarding Customer’s credit card (including, but not limited to, changes to Customer’s billing address or other pertinent contact information). Absent such notification, Liquibase will assume that all of the information related to Customer’s credit card remains valid and will submit to the card processor all information that it requires for approval, both when Customer initially subscribes and, if applicable, upon the commencement of any renewal of that subscription. If any subscription fees or other charges billed to Customer’s credit card are declined for any reason, Liquibase will have the right to suspend Customer’s subscription until such subscription fees or other charges are paid in full. Customer agrees to pay all costs (including attorneys’ fees) incurred by Liquibase in collecting any unpaid subscription fees or other charges from Customer.
4.2 U.S. Dollars. All money amounts set forth herein are expressed in, and all payments to be made hereunder will be made in, United States dollars, unless otherwise specified by Liquibase. All payments are non-refundable and all fees are non-cancellable.
4.3 Taxes. All fees are exclusive of any Taxes. Customer will pay to Liquibase an amount equal to any Taxes arising from or relating to this Agreement including sales, service, use or value added taxes, which are paid by or are payable by Liquibase. “Taxes” means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of Liquibase. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Liquibase, then the sum payable to Liquibase will be increased by the amount necessary so that Liquibase receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
5. TEMPORARY LIMITATION OF ACCESS AND USE RIGHTS.
Liquibase may temporarily limit Customer’s right to access or use the Hub Services upon notice to Customer (which will be reasonable prior notice unless Liquibase reasonably believes immediate limitation is necessary) if Liquibase reasonably determines that Customer’s use of the Hub Services poses a security risk or threat to the function of the Hub Services, or poses a security or liability risk or threat to Liquibase, its affiliates or any third party. Liquibase will restore Customer’s access and use rights promptly after Customer has resolved the issue giving rise to the limitation. Customer remains responsible for all fees, if any, for the Hub Services during the period of limitation.
6. DATA.
6.1 Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Hub Services. Subject to the terms of this Agreement, during the term of this Agreement, Customer hereby grants to Liquibase a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the Hub Services to Customer, or to respond to Customer service or technical problems or Customer requests for Support Services under this Agreement, or as may be required by law.
6.2 Use Obligations
(a) In General. Customer will ensure that its use of the Hub Services and all Customer Data is at all times compliant with this Agreement, Customer’s privacy policy, and all applicable laws and regulations and conventions. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants that Customer has sufficient rights in the Customer Data to grant the rights granted to Liquibase in Section 6.1 and that the Customer Data does not infringe or violate the Intellectual Property Rights, or publicity, privacy or other rights of any third party.
(b) Sensitive Data. Customer agrees not to upload to the Hub Services any Sensitive Data. Liquibase will have no liability under this Agreement for Sensitive Data, notwithstanding anything to the contrary in this Agreement or in any federal or state laws, rules or regulations.
6.3 Anti-Virus. Customer will (a) deploy and maintain current up-to-date commercially available, and consistent with industry standards, anti-virus, anti-spam, anti-malware software on all information system components including personal computers, laptops, and servers, where applicable, used for the purpose of accessing and transmitting Customer Data to Liquibase, (b) provide for regular scanning for viral infections and update virus signature files frequently, and (c) immediately inform Liquibase if it becomes aware of the possibility of transmission of any such virus, spam or malware.
7. DISCLAIMER.
LIQUIBASE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LIQUIBASE DOES NOT WARRANT THAT THE HUB SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE HUB SERVICES WILL BE UNINTERRUPTED OR THAT THE HUB SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE. FURTHER, LIQUIBASE DOES NOT WARRANT THAT ALL ERRORS IN THE HUB SERVICES ARE CORRECTABLE OR WILL BE CORRECTED.
8. INTELLECTUAL PROPERTY.
8.1 Liquibase Ownership. Liquibase or its suppliers retain all right, title and interest and all Intellectual Property Rights in and to the Hub Services and all Documentation, including any Feedback that may be incorporated (collectively, “Liquibase Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Liquibase Technology is granted to Customer. Further, Customer acknowledges that the Hub Services are offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Hub Services. Notwithstanding anything to the contrary herein, Liquibase may freely use and incorporate into Liquibase’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Hub Services relating to Liquibase’s products or services (“Feedback”).
8.2 Aggregate Data. Liquibase will own any and all Aggregate Data produced from Customer’s use of the Hub Services. For the purposes of this Agreement, “Aggregate Data” means any and all data produced from the Customer’s use of the Hub Services or provisioning of the Hub Services for broad groups or categories in which the characteristics of individual persons or customers are no longer identifiable.
9. CONFIDENTIALITY.
Recipient will maintain all of Discloser’s Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Recipient will not use Discloser’s Confidential Information except to carry out its rights and obligations under this Agreement. Recipient will not divulge Discloser’s Confidential Information or any information derived therefrom to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the information to exercise Recipient’s rights under or perform this Agreement, and who are subject to a contractual, professional or other obligation to keep such information confidential, with such obligation no less protective of Discloser than this Section 9. Each party will be responsible for violation of this Section 9 by its Representatives. If Recipient suffers any unauthorized disclosure, loss of, or inability to account for Discloser’s Confidential Information, Recipient will promptly notify and cooperate with Discloser, and take such actions as may be necessary or reasonably requested by Discloser to minimize the damage. If Recipient is legally required to disclose Discloser’s Confidential Information, Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. Each party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors, lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by such persons and provided that such disclosures are made in confidence, (b) the party’s outside accounting firm, (c) the party’s outside legal counsel. Each party may also disclose this Agreement in connection with any litigation or legal action concerning this Agreement, to the extent such disclosure is required or recommended upon advice of counsel, and/or (d) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement and the initial Subscription Term will begin upon Liquibase’s acceptance of the applicable Order and will remain in force for the Subscription Term, unless terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew without notice to Customer for successive terms of the same duration as Customer’s initial Subscription Term (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew such Subscription Term (a) at least 30 days before the expiration of the then-current Subscription Term for Paid Hub Services, and (b) at least 10 days before the expiration of the then-current Subscription Term for Free Hub Services. Each Renewal Term will be subject to Liquibase’s then-current policies and pricing and Customer’s credit card will be charged for each such Renewal Term at the subscription fee, if any, in effect at the time of such renewal for the subscription purchased by Customer. Notices provided for non-renewal of a Subscription Term will be provided as follows: (i) by Customer to Liquibase by sending a message to support@liquibase.com, and (ii) by Liquibase to Customer by sending a message to one or more of the email addresses for Customer’s Account Administrators then associated with the Customer Account.
10.2 Termination. Each party will have the right to terminate this Agreement if the other party breaches any term of this Agreement including nonpayment, and fails to cure such breach within 30 days (10 days in the case of non-payment) after written notice thereof. Either party may terminate this Agreement immediately upon delivery of written notice if (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
10.3 Termination for Convenience. Liquibase may terminate this Agreement for convenience upon written notice to Customer of (a) at least 30 days for Paid Hub Services, and in such event Liquibase will provide a pro-rata refund of any prepaid unused fees paid by Customer before such termination, and (b) at least 10 days for Free Hub Services. Such notice will be provided by Liquibase to Customer by sending a message to one or more of the email addresses for Customer’s Account Administrators then associated with the Customer Account.
10.4 Effect of Termination. The termination of this Agreement for any reason will not affect either party’s rights or obligations that expressly or by their nature continue and survive (including the payment terms and the provisions concerning ownership, confidentiality, limitation on liability, indemnity and the warranty disclaimers), and Customer will promptly pay to Liquibase any and all unpaid amounts due under this Agreement. Upon the termination of this Agreement, Customer will cease using the Hub Services. Upon termination of this Agreement, Customer will have up to 60 days to retrieve Customer Data; during this period of time Liquibase may allow Customer to access the Hub Services solely to retrieve Customer Data or Liquibase will otherwise provide Customer Data to Customer. Subject to this retrieval right, Liquibase will have no further obligation to make Customer Data available after termination of this Agreement and will thereafter promptly delete Customer Data. Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party at law or in equity.
10.5 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (License Grant and Provision of Hub Services), Section 8 (Intellectual Property) and Section 9 (Confidentiality) or any other provisions of this Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
11. INDEMNIFICATION.
Customer will defend, indemnify and hold harmless Liquibase and its Affiliates, and its and their directors, officers, employees, contractors, and agents from and against any liabilities, claims, damages, costs and expenses (including reasonable attorneys’ fees and expert fees) awarded against or incurred by Liquibase or agreed upon by Customer in settlement to the extent arising out of or resulting from a third party action or claim to the extent arising out of (a) the provision of Customer Data to Liquibase and/or the breach of Section 6, (b) the use, storage, processing or display of Customer Data by the Hub Services as authorized by Customer hereunder, (c) any decision or action taken by Customer based on the Hub Services or results generated by their use, and/or (d) alleged or actual infringement of third party Intellectual Property Rights by the Customer Data or any other materials provided by Customer hereunder. Customer will not settle any action or claim in any matter that would require obligation on the part of Liquibase (other than payment or ceasing to use infringing materials), or any admission of fault by Liquibase, without Liquibase’s prior written consent, such consent not to be unreasonably withheld.
12. LIMITATION ON LIABILITY.
12.1 Limitation on Liability. EXCEPT FOR FEES DUE BUT UNPAID, IN NO EVENT WILL THE AGGREGATE LIABILITY OF LIQUIBASE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED, OR (B) $500. THE FOREGOING APPLIES NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
12.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL LIQUIBASE HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR LIQUIBASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
13. MISCELLANEOUS.
13.1 Governing Law and Dispute Resolution. The governing law, jurisdiction, and dispute resolution provisions for any controversy or dispute arising out of or relating to this Agreement will be governed by the laws of the State of Texas, excluding rules as to choice and conflict of law, and (ii) each party consents to the exclusive jurisdiction and venue of the federal and state courts of Texas and agree that any action, suit, proceeding or dispute relating to this Agreement will be brought only in the federal and state courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or party to be enjoined is located. EACH PARTY FURTHER AGREES THAT ANY ACTION, SUIT OR PROCEEDING RELATED TO THIS AGREEMENT WILL BE TRIED TO THE BENCH AND EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY SUCH ACTION. If any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, then the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this Section only, “prevailing party” means the party that prevails on a majority of causes of action in such dispute.
13.2 Assignment. Customer may not assign or transfer this Agreement to a third party, nor delegate any duty, without the prior written consent of Liquibase, except that this Agreement may be assigned, without the consent of Liquibase, as part of a merger, or sale of all or substantially all of the business or assets of Customer to which this Agreement pertains. Liquibase may assign or transfer its rights and delegate its obligations under this Agreement, without Customer’s consent, to an Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of the business or assets of Liquibase to which this Agreement pertains. Any attempted assignment or delegation in violation of the foregoing is void. This Agreement is binding upon the parties and their successors and permitted assigns.
13.3 Independent Contractor. The parties are independent contractors. Nothing contained herein or done pursuant to this Agreement will constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever and neither party will have the right to make any warranty or representation to such effect.
13.4 Absence of Third-Party Beneficiary Rights. No provision of this Agreement is intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto will be personal solely between the parties hereto.
13.5 Notices. Unless otherwise provided herein including in Sections 10.1 and 10.3, any notice, request, or other communication will be given in writing under this Agreement as follows: (a) Liquibase will provide notices to Customer by sending a message to one or more of the email addresses
for Customer’s Account Administrators then associated with the Customer Account, or by personal delivery, overnight courier or registered or certified mail to the Customer address provided in the Customer Account; and (b) Customer will provide notices to Liquibase by sending a message to legal@Liquibase.com or by personal delivery, overnight courier or registered or certified mail, Attention CFO. Notices provided by email or personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
13.6 English Language. This Agreement is in the English language only, which language will be controlling in all respects. No translation, if any, of this Agreement into any other language for convenience or to meet local requirements will be of any force or effect in the interpretation of this Agreement or in determination of the interests of either party hereto. Furthermore, all correspondence, notices, claims, suits and other communication between the parties hereto will be written or conducted in English. It is the express wish of the parties that this Agreement and/or any related documents have been drawn up in a language other than French. French translation: Il est de la volonté expresse des parties que le présent contrat et/ou tous les documents qui s’y rattachent soient rédigés dans une langue autre que le français.
13.7 Local Laws; Compliance with Law. Customer represents and warrants that, to the best of Customer’s knowledge, the provisions of this Agreement, and the rights and obligations of the parties hereunder, are enforceable under the laws of the countries within which the Hub Services will be used. Customer will use the Hub Services in compliance with the requirements of all applicable law. Without limiting the foregoing, Customer acknowledges that the Hub Services and related technical data received from Liquibase may be subject to U.S. export and import controls, and in using the Hub Services and related technical data Customer will comply with all applicable laws, and agrees to commit no act which, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls imposed by the U.S. Export Administration Act of 1979 as amended. Additionally, Customer agrees that the Hub Services and related technical data are not to be used, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor used for nuclear activities, chemical/biological weapons, or missile projects unless authorized by the U.S. Government.
13.8 Entire Agreement: This Agreement, Orders and all documents and Policies referenced and/or incorporated herein constitute the entire agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral. The term “including” and/or “includes” and the like means “including without limitation”. Amendments: Except as otherwise provided in this Agreement, no addition to or change in the terms of this Agreement will be effective or binding on either of the parties unless reduced to writing and signed by a duly authorized representative of each party. Waiver: An individual waiver of a breach of any provision of this Agreement requires the written express consent of the party whose rights are being waived and such waiver will not constitute a subsequent waiver of any other breach of that provision or any other provision, condition or requirement. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter. Severability: If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision. Headings and Captions; Construction: Section headings are used for convenience only and will in no way affect the construction or interpretation of this Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof will not be construed for or against either party. Order of Precedence: In the event of conflict between this Agreement and an Order, the Order prevails.
