Endowance Master Subscription Agreement
Duet360 - Marketplace and Direct Sales Version
This Master Subscription Agreement ("Agreement") is entered into as of the Effective Date by and between Endowance Solutions, a California corporation with principal offices located at 1919 Apalachee Drive, South Lake Tahoe, CA 96150 ("Endowance"), and the entity that accepts this Agreement or is identified as the customer in an applicable Order ("Client"). By executing an Order that references this Agreement, accepting this Agreement electronically, or submitting, activating, accessing, or using a subscription to Duet360 through an authorized marketplace, including the Infor Marketplace, Client agrees to be bound by this Agreement. If an individual accepts this Agreement on behalf of an entity, that individual represents that they have authority to bind the entity.
1. Definitions
1.1 Affiliate. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
1.2 Authorized Reseller. "Authorized Reseller" means a third party authorized by Endowance to market or resell subscriptions to Duet360 or related Support Services, Training Services, or Professional Services.
1.3 Client Data. "Client Data" means electronic data, content, records, files, or information submitted to, transmitted through, or otherwise processed by Duet360 on behalf of Client or its Users, excluding Endowance technology, Documentation, and usage telemetry that does not identify Client or an individual.
1.4 Documentation. "Documentation" means Endowance's then-current generally available user guides, technical documentation, and usage instructions for Duet360.
1.5 Duet360. "Duet360" means Endowance's generally available software-as-a-service and related integration management functionality identified in an Order, including applicable updates and enhancements made generally available by Endowance during the Subscription Term. Duet360 excludes third-party products and Integrated Third-Party Applications.
1.6 Hosting Environment. "Hosting Environment" means the hardware, software, networks, and infrastructure used by Endowance or its hosting and cloud service providers to host the applicable cloud components of Duet360.
1.7 Integrated Third-Party Application. "Integrated Third-Party Application" means an on-premises or hosted application, service, platform, database, or system owned, licensed, or controlled by Client or a third party and connected to Duet360, including Infor products and services where applicable.
1.8 Marketplace. "Marketplace" means an authorized third-party marketplace or catalog through which Duet360 may be listed, ordered, activated, or made available, including the Infor Marketplace.
1.9 Marketplace Provider. "Marketplace Provider" means the operator of a Marketplace. In the case of the Infor Marketplace, the Marketplace Provider is Infor or the applicable Infor affiliate operating the Marketplace.
1.10 Order. "Order" means an ordering document, order form, quote, subscription confirmation, statement of entitlement, Marketplace transaction, or other ordering instrument accepted by Endowance that identifies the Duet360 subscription, Subscription Term, fees, usage limits, support level, or other commercial terms. An Order may be entered into directly with Endowance, through an Authorized Reseller, or through a Marketplace.
1.11 Professional Services. "Professional Services" means implementation, configuration, consulting, or other professional services that Endowance agrees to perform pursuant to an Order or Statement of Work.
1.12 Security Incident. "Security Incident" means a confirmed unauthorized access to, acquisition of, or disclosure of Client Data in Endowance's possession or control that compromises the confidentiality, integrity, or availability of such Client Data. Security Incident does not include unsuccessful attempts or events that do not result in unauthorized access to Client Data.
1.13 Statement of Work or SOW. "Statement of Work" or "SOW" means a mutually agreed written document describing Professional Services, deliverables, schedule, assumptions, and fees, and incorporating this Agreement by reference.
1.14 Subscription Term. "Subscription Term" means the period during which Client is authorized to access and use Duet360 as stated in the applicable Order.
1.15 Support Services. "Support Services" means support and maintenance services for Duet360 as stated in an Order or Endowance's then-current support policy applicable to the purchased support level.
1.16 Training Services. "Training Services" means instructional courses, workshops, or materials regarding Duet360.
1.17 User. "User" means an individual authorized by Client to use Duet360 on Client's behalf, including an employee, contractor, consultant, or agent of Client.
2. Trial Services and Non-GA Services
2.1 Trial Services. Endowance may permit Client to use certain Duet360 functionality on a free or evaluation basis. Trial Services terminate on the earlier of the stated trial expiration date, the start of a paid Subscription Term for the applicable functionality, or Endowance's discontinuation of the trial as permitted by applicable law.
2.2 Non-GA Services. Endowance may invite Client to evaluate beta, pilot, limited-release, developer-preview, non-production, or other features not generally available ("Non-GA Services"). Client may accept or decline such evaluation in its sole discretion.
2.3 Restrictions and Disclaimers. Trial Services and Non-GA Services are provided solely for evaluation, may be unsupported, may contain errors, and may be subject to additional terms. Unless expressly stated otherwise in writing by Endowance, Trial Services and Non-GA Services are provided "AS IS" without warranties of any kind and are excluded from service-level commitments.
2.4 Data Retention. Client is responsible for exporting any data it wishes to retain before a Trial Service or Non-GA Service ends. Endowance may delete data associated with such services after termination, subject to applicable law and any written data-retention commitment expressly agreed by Endowance.
2.5 Limited Liability for Evaluation Services. To the maximum extent permitted by law, Endowance's aggregate liability arising from Trial Services and Non-GA Services will not exceed fifty dollars (US $50).
3. Subscription Rights and Use Restrictions
3.1 Right of Use. Subject to Client's payment of applicable fees and compliance with this Agreement and the applicable Order, Endowance grants Client, during the Subscription Term, a limited, non-exclusive, non-transferable (except as permitted under Section 20.6), non-sublicensable right for its Users to access and use Duet360 solely for Client's internal business purposes and in accordance with the Documentation and applicable usage limits.
3.2 Users and Credentials. Client may authorize Users to access Duet360 and is responsible for their compliance with this Agreement. Client will use commercially reasonable efforts to prevent unauthorized access, maintain the confidentiality of credentials, and promptly notify Endowance of known unauthorized use.
3.3 Restrictions. Client will not, and will not permit any third party to: (a) sell, resell, sublicense, distribute, rent, or lease Duet360 except through an arrangement expressly authorized by Endowance; (b) reverse engineer, decompile, or disassemble Duet360 except to the extent such restriction is prohibited by law; (c) access Duet360 to build a competitive product or service; (d) circumvent technical or contractual usage limits; (e) use Duet360 to violate applicable law or third-party rights; or (f) introduce malicious code into Duet360.
3.4 Integrated Third-Party Applications. Duet360 may interoperate with Integrated Third-Party Applications. Client is responsible for obtaining and maintaining all rights, licenses, credentials, and permissions necessary for those applications. Client authorizes Endowance to access, transmit, and process Client Data to and from Integrated Third-Party Applications as necessary to provide Duet360 and as configured or directed by Client. Endowance is not responsible for errors, outages, data loss, or other harm caused by an Integrated Third-Party Application or the acts or omissions of its provider, except to the extent caused by Endowance's breach of this Agreement.
3.5 Third-Party Service Providers. Client may engage third parties to provide implementation or consulting services related to Duet360. Unless Endowance is a party to the applicable engagement, such services are solely between Client and the third party, and Endowance does not warrant or assume responsibility for them.
4. Availability and Service Levels
4.1 General Availability Commitment. Endowance will use commercially reasonable efforts to make the hosted components of Duet360 available during the Subscription Term, subject to planned maintenance, emergency maintenance, force majeure events, issues caused by Client or Integrated Third-Party Applications, internet or telecommunications failures outside Endowance's reasonable control, and suspensions permitted under this Agreement.
4.2 Service Levels. Any specific uptime percentage, service credit, response-time commitment, or other service-level obligation applies only if expressly stated in the applicable Order or in an Endowance Support or Service Level Policy incorporated into that Order. If no specific service level is stated, Section 4.1 is the applicable availability commitment.
5. Support and Professional Services
5.1 Support Services. Endowance will provide Support Services in accordance with the support level stated in the applicable Order and any then-current Support Policy incorporated by reference. Support policies may define support hours, severity levels, response targets, maintenance windows, and exclusions.
5.2 Professional Services. If the parties enter into an Order or SOW for Professional Services, Endowance will perform those services as described therein. Client will provide timely access to personnel, systems, information, decisions, and other resources reasonably needed for performance. Delays caused by Client may result in corresponding schedule adjustments.
5.3 Deliverables. Subject to payment of applicable fees, Endowance grants Client a non-exclusive, non-transferable (except under Section 20.6) right during the applicable Subscription Term to use deliverables created specifically for Client under a SOW in connection with Client's authorized use of Duet360. Endowance retains all right, title, and interest in its pre-existing materials, templates, tools, methods, know-how, Documentation, Training Materials, Duet360, and any modifications or improvements to them ("Endowance IP").
6. Security
6.1 Information Security Program. Endowance will maintain commercially reasonable administrative, technical, and organizational safeguards designed to protect Client Data processed in the Hosting Environment against unauthorized access, use, alteration, or disclosure. Such safeguards will be appropriate to the nature of the Client Data processed and the risks presented by the processing. Endowance will require material hosting and cloud service providers processing Client Data on its behalf to maintain appropriate security measures.
6.2 Security Incidents. Endowance will investigate and take reasonable steps to contain and remediate a confirmed Security Incident. Endowance will notify Client without undue delay after confirming a Security Incident and will provide information reasonably available to Endowance regarding the nature of the incident, affected data, mitigation steps, and status, subject to legal, security, and confidentiality restrictions. Endowance may provide supplemental information as its investigation progresses.
6.3 Encryption and Client Responsibilities. Endowance will use industry-standard encryption for Client Data in transit over public networks and for Client Data at rest in hosted systems where such encryption is technically supported and appropriate. Client is responsible for configuring its own systems, credentials, API policies, endpoint security, and Integrated Third-Party Applications in a secure manner and for determining whether Duet360 is appropriate for the categories of data Client chooses to process.
7. Client Data and Privacy
7.1 Ownership and Processing Rights. As between the parties, Client retains all right, title, and interest in Client Data. Client grants Endowance and its subprocessors a limited, non-exclusive right to host, copy, transmit, use, and otherwise process Client Data solely as necessary to provide, secure, support, and improve the subscribed Duet360 services; perform Professional Services; prevent fraud or abuse; comply with law; and otherwise fulfill Endowance's obligations under this Agreement.
7.2 Data Protection Roles. To the extent Endowance processes personal data on Client's behalf in a processor or service-provider capacity, Client is the controller/business (or equivalent role) and Endowance is the processor/service provider (or equivalent role), except where applicable law provides otherwise. Each party will comply with applicable data protection laws applicable to its own activities under this Agreement.
7.3 Data Processing Addendum. If required by applicable data protection law for the processing contemplated by an Order, the parties will enter into or be bound by Endowance's then-current Data Processing Addendum ("DPA"), which may include applicable international-transfer mechanisms and subprocessor terms. In the event of a conflict concerning personal-data processing, the DPA will control.
7.4 Privacy Policy. Endowance's public-facing collection and use of personal information, including information collected through its websites or account-registration processes, is governed by Endowance's then-current Privacy Policy. The Privacy Policy does not replace contractual processing obligations applicable to Client Data under this Agreement or a DPA.
7.5 Client Obligations. Client represents that it has all rights, notices, consents, and lawful bases necessary for Endowance to process Client Data as contemplated by this Agreement and Client's configuration of Duet360. Client is responsible for determining whether any legal or contractual restrictions apply to the data it transmits through Duet360.
7.6 Return and Deletion. Upon expiration or termination of the applicable Subscription Term, and upon Client's written request made before deletion, Endowance will make Client Data reasonably available for export if such export functionality is then available. Endowance may thereafter delete Client Data in accordance with its standard retention practices, except to the extent retention is required by law, backup practices, or a DPA.
8. Malware and Acceptable Security Practices
Each party will maintain commercially reasonable safeguards on systems under its control that directly access or provide the services to detect and prevent malicious code, unauthorized access, and similar security threats. Neither party will knowingly introduce malicious code into the other party's systems.
9. Fees, Payment, and Taxes
9.1 Fees. Client will pay the fees stated in the applicable Order. Except as expressly stated in this Agreement or an Order, fees are non-cancelable and non-refundable.
9.2 Marketplace and Reseller Transactions. If Client purchases through a Marketplace or Authorized Reseller, invoicing, payment method, collection, taxes, currency, and related transaction mechanics may be governed by the applicable Marketplace or reseller arrangement. Client remains responsible for all fees properly due for its subscription. In the event of a conflict, the Order governs commercial terms specific to the transaction, while this Agreement governs use of Duet360 unless expressly stated otherwise.
9.3 Direct Payment Terms. For fees invoiced directly by Endowance, amounts are due thirty (30) days from the invoice date unless the applicable Order states otherwise. Overdue undisputed amounts may accrue interest at 1.5% per month or the maximum lawful rate, whichever is less.
9.4 Suspension for Non-Payment. If an undisputed amount owed directly to Endowance is thirty (30) or more days overdue, Endowance may suspend the affected subscription after giving at least ten (10) days' prior written notice, unless Client pays the overdue amount or reasonably disputes it in good faith and cooperates diligently to resolve the dispute.
9.5 Taxes. Fees are exclusive of applicable sales, use, value-added, withholding, and similar transaction taxes, except taxes based on Endowance's net income. Client is responsible for applicable taxes unless a Marketplace Provider or Authorized Reseller is legally responsible for collection or Client provides a valid exemption certificate.
9.6 Future Functionality. Client's purchase is not contingent on delivery of future functionality or features or on oral or written statements about future functionality, except to the extent expressly included in an executed Order or SOW.
10. Suspension
Endowance may suspend access to affected portions of Duet360 if reasonably necessary to: (a) address a material breach of this Agreement; (b) prevent or contain a security threat or Security Incident; (c) comply with law, court order, or a credible claim that Client lacks rights necessary to use an Integrated Third-Party Application; (d) prevent material harm to Endowance, Client, other customers, or third parties; or (e) enforce Section 9.4. Where reasonably practicable, Endowance will provide notice and will limit the suspension to the affected functionality and restore access promptly after the issue is resolved.
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11. Term; Renewal; Termination
11.1 Term. This Agreement begins on the Effective Date and continues until all Subscription Terms have expired or been terminated, unless this Agreement is terminated earlier in accordance with its terms.
11.2 Renewal. Unless an Order states otherwise, each Subscription Term automatically renews for successive one-year periods unless either party gives at least forty-five (45) days' written notice of non-renewal before the then-current Subscription Term ends. Upon each renewal, the applicable Subscription Fees will increase by five percent (5%) over the Subscription Fees in effect during the immediately preceding Subscription Term, unless otherwise expressly stated in the applicable Order.
11.3 Termination for Cause. Either party may terminate this Agreement or an affected Order if the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days after written notice describing the breach. Either party may terminate immediately if the other party becomes subject to a bankruptcy, insolvency, receivership, or similar proceeding that is not dismissed within sixty (60) days, makes a general assignment for the benefit of creditors, or ceases ordinary business operations.
11.4 Effect of Termination. Upon expiration or termination of an Order, Client's right to use the affected Duet360 subscription ends. Each party will cease use of and, upon request, return or destroy the other party's Confidential Information, subject to standard archival backups and legal retention requirements. Accrued payment obligations and provisions that by their nature should survive will survive termination.
11.5 Refund on Endowance Breach. If Client properly terminates an Order under Section 11.3 due to Endowance's uncured material breach, Endowance will refund any prepaid subscription fees allocable to the unused portion of the terminated Subscription Term, unless the applicable Marketplace or Authorized Reseller is responsible for issuing such refund under the applicable transaction arrangement.
12. Confidentiality
12.1 Confidential Information. "Confidential Information" means non-public information disclosed by one party ("Disclosing Party") to the other ("Receiving Party") that is designated confidential or that reasonably should be understood to be confidential based on its nature and the circumstances of disclosure. Client Data is Client Confidential Information. Duet360, non-public Documentation, Training Materials, product plans, security information, pricing, and Endowance IP are Endowance Confidential Information. Confidential Information excludes information that the Receiving Party can document: (a) is publicly available without breach; (b) was lawfully known without restriction before disclosure; (c) was lawfully received from a third party without confidentiality obligation; or (d) was independently developed without use of the Disclosing Party's Confidential Information.
12.2 Protection. The Receiving Party will use at least reasonable care to protect Confidential Information and will use it only to exercise rights or perform obligations under this Agreement. The Receiving Party may disclose Confidential Information to its Affiliates, employees, contractors, professional advisers, Marketplace Provider, and Authorized Resellers who have a need to know and are bound by confidentiality obligations, provided the Receiving Party remains responsible for their compliance to the extent required by law or contract.
12.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent legally required, provided it gives prior notice to the Disclosing Party when legally permitted and reasonable assistance, at the Disclosing Party's expense, if the Disclosing Party seeks protective treatment.
13. Proprietary Rights
13.1 Reservation of Rights. Except for rights expressly granted in this Agreement, each party retains all right, title, and interest in its technology, data, content, intellectual property, and Confidential Information.
13.2 Endowance Ownership. Endowance owns Duet360, Documentation, Training Materials, Endowance IP, and all related intellectual property rights, including modifications, improvements, and derivative works, excluding Client Data and third-party technology.
13.3 Client Ownership. Client owns Client Data and Client's Confidential Information, subject to the limited processing rights granted to Endowance under this Agreement.
13.4 Aggregated Information. Endowance may create and use aggregated, statistical, and de-identified information derived from use of Duet360 for analytics, security, operations, benchmarking, and product improvement, provided it does not identify Client or any individual and does not disclose Client Confidential Information.
13.5 Feedback. Client grants Endowance a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into its products and services any suggestions or feedback voluntarily provided by Client, without identifying Client as the source unless Client consents.
14. Warranties and Disclaimers
14.1 Performance Warranty. Endowance warrants that, during the applicable Subscription Term, Duet360 will perform in all material respects in accordance with the then-current Documentation when used as authorized. Client must notify Endowance of a claimed breach within thirty (30) days after discovery. Endowance's obligation, and Client's exclusive remedy, is for Endowance to use commercially reasonable efforts to correct the nonconformity or provide substantially equivalent functionality. If Endowance cannot do so within a reasonable period, Client may terminate the affected Order and receive a pro rata refund of prepaid fees for the unused portion of the terminated Subscription Term.
14.2 Services Warranty. Endowance warrants that Professional Services and Support Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Client's exclusive remedy for breach of this warranty is re-performance of the nonconforming services, provided Client gives reasonably prompt notice.
14.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DUET360, SUPPORT SERVICES, PROFESSIONAL SERVICES, DOCUMENTATION, AND ALL RELATED MATERIALS ARE PROVIDED "AS IS" AND ENDOWANCE DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. ENDOWANCE DOES NOT WARRANT THAT DUET360 WILL BE ERROR-FREE, UNINTERRUPTED, OR IMMUNE FROM ALL SECURITY THREATS, OR THAT AN INTEGRATED THIRD-PARTY APPLICATION WILL REMAIN AVAILABLE OR COMPATIBLE.
15. Indemnification
15.1 Endowance Indemnity. Endowance will defend Client against a third-party claim alleging that Client's authorized use of Duet360, Documentation, Training Materials, or Endowance-created deliverables infringes a United States patent, copyright, or trademark, and will pay damages, costs, and reasonable attorneys' fees finally awarded or agreed in settlement. This obligation does not apply to claims arising from Client modifications, combinations with items not supplied or approved by Endowance, use outside the Documentation or scope of this Agreement, continued use after Endowance provides a non-infringing alternative, or Client's breach of this Agreement.
15.2 Client Indemnity. Client will defend Endowance against third-party claims arising from Client's unlawful or unauthorized Client Data, Client's violation of third-party rights, or Client's unauthorized use of an Integrated Third-Party Application, and will pay damages, costs, and reasonable attorneys' fees finally awarded or agreed in settlement, except to the extent caused by Endowance's breach of this Agreement or violation of law.
15.3 Indemnity Procedure. The indemnified party must provide prompt notice of the claim, reasonable cooperation at the indemnifying party's expense, and control of the defense and settlement to the indemnifying party. The indemnifying party may not settle a claim in a manner that admits fault by, imposes non-monetary obligations on, or fails to fully release the indemnified party without the indemnified party's prior written consent, not to be unreasonably withheld.
15.4 Infringement Remedies. If use of Duet360 is or is likely to be enjoined, Endowance may, at its option and expense: (a) procure the right for Client to continue use; (b) modify or replace the affected functionality so it is non-infringing and materially equivalent; or (c) terminate the affected subscription and refund prepaid fees allocable to the unused portion of the terminated Subscription Term.
16. Limitation of Liability
16.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 Aggregate Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT FOR THE AFFECTED DUET360 SUBSCRIPTION DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM. IF THE EVENT OCCURS DURING THE FIRST TWELVE MONTHS OF A SUBSCRIPTION, THE CAP WILL BE THE FEES PAID OR PAYABLE FOR THAT INITIAL TWELVE-MONTH PERIOD.
16.3 Excluded Claims. "Excluded Claims" means: (a) Client's payment obligations; (b) a party's indemnification obligations under Section 15; (c) a party's fraud, gross negligence, or willful misconduct; and (d) liabilities that cannot lawfully be limited. Except for Client's payment obligations and liabilities that cannot lawfully be limited, aggregate liability for Excluded Claims will not exceed two (2) times the liability cap stated in Section 16.2.
16.4 Allocation of Risk. The limitations in this Section apply regardless of the theory of liability and reflect the parties' allocation of risk and the basis of the bargain.
17. Marketing
Endowance may identify Client as a customer or use Client's name or logo in marketing materials only with Client's prior written approval and subject to Client's then-current trademark usage guidelines. Approval may be revoked prospectively upon reasonable written notice.
18. Marketplace and Third-Party Platform Terms
18.1 Separate Relationship with Marketplace Provider. Client acknowledges that Endowance, not the Marketplace Provider, is the provider of Duet360 under this Agreement. Unless expressly stated in a separate written agreement, the Marketplace Provider is not a party to this Agreement and does not assume Endowance's obligations concerning Duet360, Support Services, Professional Services, warranties, security, indemnification, or service levels.
18.2 Infor Products and Services. Client's use of Infor software, cloud services, APIs, Marketplace functionality, accounts, credentials, and other Infor products or services is governed by Client's separate agreement(s) with Infor. Endowance does not control and is not responsible for the availability, operation, modification, or discontinuation of Infor products or services, except to the extent Endowance's own acts or omissions independently breach this Agreement.
18.3 No Implied Endorsement or Agency. Listing or availability of Duet360 on a Marketplace does not create an agency, partnership, joint venture, warranty, or endorsement by the Marketplace Provider. Neither Endowance nor Client may bind a Marketplace Provider under this Agreement.
18.4 Marketplace Requirements. Endowance and Client will comply with Marketplace terms applicable to their respective use of the Marketplace. If a Marketplace Provider requires reasonable technical, security, branding, or listing changes to Duet360, Endowance may implement such changes provided they do not materially reduce purchased functionality during the Subscription Term without Client's consent or an applicable termination/refund right.
19. Export and Compliance
Each party will comply with applicable export control, sanctions, anti-bribery, and anti-corruption laws in connection with this Agreement. Client will not access, use, export, re-export, or transfer Duet360 in violation of applicable trade restrictions or to a prohibited person, entity, or destination. Each party represents that it is not subject to sanctions or restrictions that would prohibit performance of this Agreement.
20. Miscellaneous
20.1 Force Majeure. Neither party will be liable for delay or failure to perform non-payment obligations caused by circumstances beyond its reasonable control, including natural disasters, acts of government, civil unrest, labor disputes, utility or telecommunications failures, internet disruptions, denial-of-service attacks, or failures of third-party infrastructure not caused by that party.
20.2 Non-Waiver; Cumulative Remedies. Failure or delay to enforce a provision is not a waiver. Except where this Agreement states an exclusive remedy, remedies are cumulative.
20.3 Severability. If any provision is held invalid or unenforceable, the remaining provisions will remain in effect and the invalid provision will be enforced to the maximum extent permitted by law.
20.4 Enforcement Costs. The prevailing party in an action to enforce this Agreement may recover reasonable attorneys' fees and costs to the extent permitted by law.
20.5 Assignment. Either party may assign this Agreement without the other party's consent to an Affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, upon written notice. If Endowance assigns this Agreement to a direct competitor of Client, Client may terminate the affected Order upon written notice and receive a pro rata refund of prepaid fees for the unused portion of the Subscription Term. Any other assignment requires the other party's prior written consent, not to be unreasonably withheld or delayed.
20.6 Amendments; Online Policies. Except for policies expressly incorporated by reference and permitted to be updated under this Agreement, amendments to this Agreement must be in writing and agreed by authorized representatives of both parties. Endowance may update incorporated operational policies, such as a Support Policy, Privacy Policy, or DPA, provided an update does not materially reduce Client's contractual rights during a current Subscription Term except as required by law, security, or a Marketplace Provider requirement.
20.7 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, fiduciary, employment, or agency relationship.
20.8 Order of Precedence. In the event of a conflict, the following order of precedence applies: (a) an executed DPA, solely for data-protection matters; (b) the applicable Order, solely for transaction-specific commercial terms and expressly negotiated deviations; (c) this Agreement; and (d) incorporated policies. Marketplace or reseller transaction terms govern payment processing and marketplace mechanics only to the extent applicable and do not expand Endowance's product obligations unless Endowance expressly agrees in writing.
20.9 Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California and the United States, without regard to conflict-of-laws principles. The exclusive jurisdiction and venue for any action arising out of or relating to this Agreement will be the state and federal courts located in [County], California, and each party irrevocably consents to the personal jurisdiction of those courts.
20.10 Notices. Legal notices must be in writing and sent to the address stated in the applicable Order or, for Endowance, to the address stated at the beginning of this Agreement, by nationally recognized overnight courier, certified mail, or another method expressly agreed in the Order. Operational notices may be delivered electronically to designated account contacts.
20.11 No Third-Party Beneficiaries. Except as expressly stated in an applicable Marketplace term that Endowance has accepted in writing, this Agreement does not confer rights or remedies on any third party, including any Marketplace Provider.
20.12 Electronic Signatures; Counterparts. This Agreement and any Order or SOW may be accepted by electronic signature, electronic acceptance, or in counterparts, each of which is deemed an original and all of which together constitute one instrument.
20.13 Entire Agreement. This Agreement, together with applicable Orders, SOWs, DPAs, and incorporated policies, constitutes the entire agreement between the parties regarding its subject matter and supersedes prior or contemporaneous agreements, proposals, or representations concerning that subject matter. Terms in a Client purchase order or similar document are for administrative convenience only and do not modify this Agreement unless expressly accepted in writing by Endowance.
20.14 Survival. Sections concerning accrued payment obligations, confidentiality, proprietary rights, indemnification, limitation of liability, effect of termination, export and compliance, and provisions that by their nature should survive will survive expiration or termination.
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END OF AGREEMENT