Agreement

Customer Terms and Conditions

THESE CUSTOMER TERMS AND CONDITIONS (this “Agreement” or “Terms and Conditions”) is entered into by and between The Faction Group LLC d/b/a Faction, a Colorado limited liability company, with offices located at 1660 Lincoln Street, Suite 1600, Denver, CO 80264 (“Faction“) and the Customer, where “Customer” (or “You” or “Your”) is defined as the end-user, whether an individual person or a corporate entity, who has purchased the Services; whether directly from Faction or from a reseller, agent, distributor or another intermediary. Faction and Customer are sometimes referred to individually as a “party” and collectively as the “parties”. This Agreement is effective as of the earlier of the date (a) You agree to the online version of this Agreement, or (b) on which Faction notifies You that the Services are available for commercial use; or (c) You first use any of the Services (the “Effective Date”).

DESCRIPTION OF THE SERVICES
Faction is a provider of cloud data, computing and network infrastructure-as-a-service offerings (collectively, the “Services”) where Faction owns the IT service(s) infrastructure and makes the Services available either directly to end-user customers or through an Approved Entity. An “Approved Entity” is a reseller, distributor, or any other entity which has been approved by Faction to sell or distribute Faction Services to an end-user customer or individual. This Agreement will apply to all Subscriptions to Faction Services, where “Subscription” means an agreement (whether directly or through any Approved Entity) with Faction to use one or more Faction Services. Each Subscription will set forth a specified length of time during which Faction will provide the Services (the “Subscription Term”). Any new or additional Subscriptions agreed upon in writing by the applicable parties, will be subject to the terms and conditions of this Agreement. This Agreement contains the terms and conditions that govern the Services and Your access and use of the Services. Capitalized terms and phrases used in this Agreement will have the meanings set forth in the context in which they are used as applicable.
ADDITIONAL AGREEMENTS. The following agreements are incorporated in full as part of this Agreement:
Acceptable Use Policy (“AUP”) www.factioninc.com/aup
Faction Support & Service Level Agreement (“SLA”) www.factioninc.com/sla
Faction’s Data Processing Addendum (“DPA”) (to be provided upon request)
SERVICES/RIGHTS GRANTED
1. Right to Use the Services. Faction will provide the Services in accordance with the terms of this Agreement. For the duration of each Subscription Term, You will have the non-exclusive, non-assignable, worldwide, limited right to use the Services in connection with its internal business operations subject to the terms of this Agreement. Faction will use its sole discretion to determine the manner or method for completing and providing the Services.
2. No Software Delivery Obligation. Unless specifically set forth in a Subscription, Faction has no software delivery obligation and will not ship copies of any of the software programs used to provide the Services to You as part of the Services. Upon the termination or expiration of a Subscription, Your right to access or use the software programs and the Services will terminate.
3. Service Level. Faction will make the Services available in accordance with the SLA.
4. Professional and Managed Services. If You elect to engage Faction to provide Professional or Managed Services, the scope of the Professional or Managed Services and any deliverables will be described in a separate written agreement.
5. Location of Services. Faction may change the location from which the Services are provided to any Faction facility in the same geographical region as the original facility upon ninety (90) days prior written notice to You, provided such relocation does not have a material adverse impact on Faction’s Services. The reference to “the same geographical region” means in the same State if in the U.S. and in the same country for anywhere outside of the U.S., and where the location is typically within 100 miles or less of the original facility. Additionally, any location change will comply with applicable laws, including those related to data privacy.
6. Activation. “Activation” occurs when purchased quantities of Services, including Cloud Control Volumes (volumes, LUNs, object pools), Ancillary Cloud Services, and Network and Platform Services associated with an order are (i) provisioned and connected to the Faction Internetwork eXchange and/or accessible via the Internet as applicable, and (ii) Faction has provided You with access credentials (initial username/password and URL for login, VPN, and/or IP address) necessary to manage the applicable services purchased.
7. Services Confirmation. Within 30 days of the execution of each Subscription, whether with Faction or an Approved Entity, Faction will provide You with a “Services Confirmation”, which will specify the Services purchased by You. Upon Your written acknowledgment of the Services Confirmation (including via email), the Services Confirmation will be incorporated by reference into this Agreement. If You do not notify Faction of an issue with the Services Confirmation or do not provide written acknowledgement within seven (7) days, then the Services Confirmation will be deemed approved, and incorporated by reference into this Agreement as if fully set forth in this Agreement.
INTELLECTUAL PROPERTY/LICENSE TO FACTION IP
1. Faction Ownership. Faction owns or has licenses or right, title or interest and all other proprietary or intellectual property rights (“Intellectual Property Rights”) in and to all patents, copyrights, trade secrets for the processes, software, utilities, and methods of operation that Faction will use to perform Faction’s Services under this Agreement, including but not limited to, know-how, templates, project tools, and all licensed software (collectively, “Faction IP”). Faction IP does not include Customer Data. Faction or its licensors reserve all Intellectual Property Rights in the Faction IP. Faction grants You a limited license to use the Faction IP for the Subscription Term. You represent and warrant that You will not modify, disassemble, decompile, or reverse engineer any software in the Services or Faction IP in any manner whatsoever. Further, You will not otherwise use the Faction IP except as expressly permitted pursuant to this Agreement.
2. Customer Ownership. You retain all ownership and Intellectual Property Rights in and to Your confidential information and to all data and information (such as electronic files, materials, data, text, audio, video, images, etc.) uploaded, transmitted, stored, retrieved, processed, submitted, or otherwise made available by You in connection with the Services (“Customer Data”). Faction may compile non-identifying, aggregate, statistical information related to the performance of the Services, and may make such information publicly available, provided that such information is anonymized or does not contain any personally identifiable or Customer-specific information.
LIMITED WARRANTY AND DISCLAIMERS/SUSPENSION OF SERVICES
1. Services Warranty. Subject to the limitations described below, Faction warrants that the Services will perform in all material respects in accordance with the Faction “Services Description,” which is a document that will detail and identify the Faction Services purchased by Customer.
2. Disclaimer of Warranties. Faction does not guarantee that the Services will be performed error-free or uninterrupted or that Faction will correct all errors. You acknowledge that Faction does not control the transfer of data over communications facilities, including the Internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Faction is not responsible for any delays, delivery failures or other damage resulting from such problems. Except as specifically provided in this Agreement and to the extent not prohibited by law, Faction disclaims all warranties, including but not limited to the warranties of merchantability, fitness for any particular purpose, and non-infringement.
3. Suspension of Services. Faction may suspend Services if: (i) the Services are being used in violation of this Agreement, including the AUP; (ii) You fail to cooperate with any investigation of a suspected violation of this Agreement, including the AUP; (iii) the Services have been accessed or manipulated by a third party without Faction’s consent; (iv) Faction does not receive payments owed; or (v) required by law. In addition, if a network or part of a network utilized by You undergoes a denial-of-service attack which causes an impact to Faction network services, Faction may, at its sole discretion, utilize scrubbing services to remove denial of service traffic, or temporarily suspend or route advertisement of customer networks during the attack. Faction will use commercially reasonable efforts to provide advance notice of a suspension of Services and opportunity to cure, unless suspension is necessary to protect Services or You or other customers from imminent and significant operational or security risk.
4. Access to Customer Data. Unless required by law, You acknowledge and understand that You will not have access to any Customer Data during a suspension of the Services. Unless such Services have been specifically purchased by You or assigned to Faction in a Subscription, You are responsible for maintaining current and reliable backups of Your Customer Data and Faction has no obligation to help You recover Your Customer Data.
INDEMNIFICATION
1. Faction’s Obligations. Subject to the limits of liability contained in this Agreement, Faction will indemnify, defend, and hold You, and Your officers, directors, and employees harmless from and against any losses, claims, penalties, fines, awards, costs, judgments, damages, liabilities, or expenses, including reasonable attorneys’ fees (“Losses”) incurred by You (or Your officers, directors, or employees) and arising out of or relating to or based upon:
  1. any claim for bodily injury or death of any individual, or the loss, damage, or destruction of any real or tangible personal property, resulting from willful misconduct, gross negligence, or fraudulent acts or omissions by Faction; or
  2. any Infringement Claim by a third-party related to the Services or any deliverables provided by Faction. “Infringement Claim” is defined as a claim or action alleging infringement of (i) any patent issued as of the Effective Date of this Agreement, or (ii) any trademark, copyright, or trade secret. Faction will have no indemnification obligation to You if an Infringement Claim results from (i) a correction, alteration, or modification of the Services not provided, or approved in writing, by Faction, or (ii) the combination or use of the Services with other services, products, applications, components, accessories, hardware, software, or systems which were not provided, or approved in writing, by Faction.
2. Customer’s Obligations. Subject to the limits of liability contained in this Agreement, You will indemnify, defend, and hold harmless Faction, its officers, directors, and employees from and against any Losses incurred by Faction and arising out of or relating to or based upon:
  1. Your use or any of Your Representatives use of the Services in violation of any applicable law or of this Agreement; or
  2. any claim for bodily injury or death of any individual, or the loss, damage, or destruction of any real or tangible personal property, resulting from willful misconduct, gross negligence, or fraudulent acts or omissions by You or any of Your Representatives; or
  3. any Infringement Claim, or any other sort of claim, action, or cause of action, asserted by a third party relating to any Customer Data or any other data, content, or materials provided by You or any of Your Representatives. You will have no indemnification obligation to Faction if an Infringement Claim or other action results from changes or alterations to the Customer Data or materials which were made by Faction without approval in writing from You; or
  4. any dispute between You and any of Your Representatives or an Approved Entity
  “Representatives” means Your end users, employees, personnel, agents, or representatives (including, for the avoidance of doubt, any Approved Entity), or any other person or entity who accesses the Services on Your behalf, whether authorized by You or not. You are responsible and liable for all acts and omissions of Your Representatives whether such acts or omissions were committed with or without Your knowledge or authorization.
3. Procedure. Upon receiving notice of any claim for indemnification set forth in this Section 6, the party entitled to indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”). The Indemnifying Party, at its sole expense, will assume control of the defense of any such claim; however, the Indemnified Party may, at is sole cost and expense, participate in the defense. The Indemnifying Party will not settle any claim without the Indemnified Party’s prior written consent, where such consent will not be unreasonably withheld, conditioned, or delayed.
4. Option. In addition to the foregoing indemnification obligations, if all or any part of a Service or any deliverables is subject to an Infringement Claim, Faction may, at its sole discretion and expense: (a) procure for You the right to continue using the Services; or (b) modify or replace the allegedly infringing aspect of the Services, and make them non-infringing, provided, however, that such modification or replacement will not degrade the operation or performance of the Services. If neither of the remedies in this Section 6.4(a) or 6.4(b) is commercially reasonable, Faction may terminate any applicable Subscription or this Agreement and Faction will refund to You any fees pre-paid to Faction for Services not yet provided, unless such fees are refunded by an Approved Entity. For clarity, if the amount of fees pre-paid by You to an Approved Entity is greater than the amount received by Faction, Faction will only refund the amount of pre-paid fees that Faction received for the Subscription.
CONFIDENTIALITY
1. Previously Executed MNDA. While performing under this Agreement, each party may disclose to the other confidential information. Each party agrees to maintain the confidential information in confidence in accordance with the terms and conditions of a separately negotiated and executed mutual non-disclosure or confidentiality agreement (“MNDA”) entered between the parties. If the MNDA has a term that expires prior to the expiration of this Agreement, the parties agree to extend the term of the MNDA for the Term of this Agreement. Additionally, if applicable, the parties agree to amend the definition of “Purpose” (or such other similar defined term) in the MNDA to include the Services provided by Faction and the intent of the parties as set forth in this Agreement. Further, if the term “Representatives” is defined or used in the MNDA, it is limited strictly to the MNDA, and does not replace, govern, or supersede the definition of Representatives as defined in this Agreement in Section 6.2 above.
2. No MNDA. In the event the parties have not negotiated and executed a separate MNDA, the parties agree as follows: During the Term of this Agreement, one Party (“Receiving Party”) may have access to the Confidential Information of the other Party (“Disclosing Party”). “Confidential Information” means all proprietary information disclosed by one Party to the other Party, whether before or after the Effective Date, that the Receiving Party should reasonably understand to be confidential. Information that is developed by one Party on its own, without the use of or reference to the other Party’s Confidential Information or that becomes available to one Party other than through violation of this Agreement or applicable law, shall not be deemed Confidential Information of the other Party. The Receiving Party agrees: (a) not to disclose the Disclosing Party’s Confidential Information to any third parties other than to its directors, officers, employees, advisors, Representatives, or consultants (collectively, the “Permitted Parties“) on a strict “need to know” basis only and provided that such Permitted Parties are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing Party’s Confidential Information confidential using at least the same degree of care it uses to protect its own Confidential Information, which shall in any event not be less than a reasonable degree of care. If Receiving Party is required by legal process or any applicable law, rule or regulation, to disclose any of Disclosing Party’s Confidential Information, then prior to such disclosure, Receiving Party will give prompt written notice, if legally permitted, to Disclosing Party so that it may seek a protective order or other appropriate relief, at Disclosing Party’s cost. The obligations of each Receiving Party under this Agreement will survive until such time as all Confidential Information of the other Party becomes publicly known and generally made available through no action or inaction of the Receiving Party.
TERM/TERMINATION
1. Term of Agreement. The term of this Agreement will begin on the Effective Date or upon Activation, whichever is earliest, and the Agreement will remain in full force and effect for the last to expire (or terminate) of Your Subscription Term(s). This Agreement may be terminated by the parties by mutual written agreement or by a party for cause, as described in Section 8.3, in which case all Subscriptions will also be terminated (unless otherwise agreed by the non-breaching party).
2. Subscription Terms. Unless an earlier date is agreed upon in writing by the relevant parties, each Subscription Term will commence upon Activation. The Subscription Term will remain in effect until the earlier to occur of the following, and in which case Faction will terminate all Services related to the Subscription being provided to You:
  - termination of a Subscription(s) by either party for cause as described in Section 8.3 below;
  - termination of such Subscription upon mutual written agreement of the parties; or
  - expiration of a Subscription Term(s) without renewal (including auto-renewals that are not renewed).
3. Termination for Cause. A party may terminate a Subscription and/or this Agreement for cause:
  1. upon receipt of written notice (specifying the default or breach) from the non-defaulting party when the other party is in default or breach of a material obligation of a Subscription or this Agreement. If such default or breach can be and is cured within thirty (30) days after receipt of written notice, then the Subscription and this Agreement will remain in effect;
  2. as set forth in Section 11.10; or
  3. if the non-terminating party enters liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or part of its assets or enters an arrangement with its creditors or takes or suffers any similar action.
4. Termination for Cause by Faction. In the case where Faction terminates this Agreement for cause as described in Sections 8.3 (a), (b), or (c), then within thirty (30) days of the date of termination, Faction may terminate all Services being provided under all Subscriptions (or Faction may agree to continue to provide certain Services in its sole discretion). If You have a direct billing relationship or Subscription with Faction, You must pay all amounts due for Services under all outstanding Subscriptions for the entire remaining Subscription(s) Terms, plus related taxes and expenses, and any past due payments. If You have a direct billing relationship with an Approved Entity, Faction will first seek its remedies from such Approved Entity; however, You will be ultimately liable for the payment of all amounts owed for the entire remaining Subscription(s) Terms, plus related taxes and expenses, and any past due payments.
5. Termination for Cause by Customer. In the case where You terminate this Agreement for cause as described in Sections 8.3(a), (b) or (c), then within thirty (30) days of the date of termination, You may terminate all Services being provided under all Subscriptions (or You may agree to continue subscribe to certain Services in its sole discretion). If You have a direct billing relationship or Subscription with Faction, You will pay Faction for all Services performed through the date of termination, including any past due payments, and Faction will refund any amounts pre-paid to it for Services after the date of termination. Otherwise, if You have a direct billing relationship with an Approved Entity, You must first seek Your remedies from the Approved Entity; however, under no circumstances will Faction refund or be liable for an amount greater than the amount actually received by Faction from the Approved Entity for the Subscription(s), even if You paid a greater amount to the Approved Entity for the Subscription.
6. Retrieval of Customer Data and Removal of Equipment. You are responsible for retrieving Customer Data and content upon the termination or expiration of an applicable Subscription. If You have not retrieved Your Customer Data upon termination or expiration of the applicable Subscription or of this Agreement, Faction may destroy Customer Data that is in its possession or control. Faction will follow its Data Destruction Policy with respect to the destruction of Customer Data. If You have physical equipment located in Faction’s facilities, You are required to remove such equipment from Faction’s facilities within thirty (30) days of termination of this Agreement or the applicable Subscription associated with such. If You fail to do so, You agree that Faction may sell or dispose of such equipment, in Faction’s discretion, and apply the proceeds against Your outstanding balance, if any.
LIMITATION OF LIABILITY
1. Cap on Damages. Except for Losses arising out of or relating to a party’s indemnification obligations under Section 6, or for any other liability which may not be excluded by law, each party’s aggregate liability arising out of or relating to this Agreement will be limited to the amount paid for the Service(s) that are the subject of the claim during the twelve (12) months prior to the occurrence of the events giving rise to the claim. Notwithstanding any language to the contrary in this Agreement, each party’s total, cumulative and aggregate damages for Losses arising out of or relating to this Agreement (including a party’s indemnification obligations under Section 6), will be limited to three million U.S. dollars ($3,000,000.00 USD).
2. Limitation of SLA Damages. Section 9.1 does not apply to Service Availability, (where the term “Service Availability” is defined and governed by the SLA). Notwithstanding any language to the contrary in this Agreement, any claims by You related to Service Availability will not exceed the Credit Cap (as such term is defined in the SLA), and You will not be entitled to any other or further damages.
3. Limitation on Types of Recoverable Damages. In no event will a party be liable for any of the following types of losses: loss of profits or revenue, loss of business or goodwill, or business interruption, or any punitive or any other type of indirect, special, incidental, or consequential damages arising out of this Agreement, or the performance or breach thereof. This limitation of liability will apply regardless of the theory of liability on which such loss is based, such as in contract, tort, or any other theory, and the limitation will apply whether a party has been advised of the possibility of such loss.
4. Acknowledgement. Each party acknowledges and agrees that the cap on damages and the limitations of liability and damages contained in this Section 9 are fundamental elements of this Agreement and that the Services would not be provided without such cap and limitations. Without limiting the foregoing, in the event any remedy under this Agreement is determined to have failed of its essential purpose, the parties intend that all limitations of liability and remedies and all exclusions of, and caps on, damages provided for in this Agreement will remain in full force and effect. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in those jurisdictions, the parties agree that the liability of each party will be limited to the fullest extent permitted by such jurisdiction.
NOTICES
1. Notice Procedure. All notices, demands, authorizations, approvals, or consents required in this Agreement between the parties will be in writing and in the English language and will be deemed effective as follows: (i) if delivered in person, on the date it is delivered; (ii) if sent by certified or registered mail, postage prepaid, return receipt requested, five (5) business days from the date such notice was posted through the U.S. Postal Service (or other applicable postal delivery service), or (iii) if sent by nationally recognized overnight courier, one (1) business day after the sender provides it to the courier for dispatch. Such notices, demands, authorizations, approvals, or consents will be sent to Faction at the address set forth at the beginning of this Agreement, and for You to such address provided in writing to Faction or as set forth in Faction’s account information or portal. The parties may change their contact or notice addresses in accordance with this Agreement.
2. Updates to Ancillary Agreements and Documents Faction may update or change its Services Description, Data Destruction Policy, AUP or SLA in its sole discretion. However, unless You provide Your prior written approval, Faction will not amend its Services Description in a manner that degrades the service level objective associated with the Services You purchased. Further, Faction will not change its SLA to decrease the Service Availability or the Service Credit Percentage. Faction will notify You by email of any material changes to these agreements if You have previously provided Faction with a valid email address. The most current changes to the relevant document will become effective 30 days after Faction provides such notice to You.
GENERAL
1. Assignment. A party may not assign this Agreement, or any of its rights, obligations or privileges under this Agreement, by operation of law or otherwise, without the prior written consent of the other party. A party may, however, without having to obtain the other party’s prior written consent, assign this Agreement, and its rights, obligations and privileges under this Agreement, to any successor by merger, or any purchaser of all or substantially all of the assets or a majority of the stock of such party, provided such successor is not a competitor of the other party. Any attempted assignment, delegation or assumption of this Agreement not in accordance with this Section 11.1 will be null and void and of no force or effect. The terms and conditions of this Agreement will inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
2. Equitable Relief. Each party is entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek equitable relief in a court of competent jurisdiction.
3. Modifications, Amendments, or Waivers. No modification or amendments to this Agreement or any Subscriptions will be valid unless made in writing and signed by a duly authorized representatives of each party. No waiver of any provision of this Agreement will be valid unless made in a writing signed by a duly authorized representative of the party waiving such provision.
4. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement and such other provisions will remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves, to the greatest extent possible, the same effect as would have been achieved by the invalid or unenforceable provision.
5. Survival. The terms, conditions or warranties contained in this Agreement that by their sense and context are intended to survive the performance thereof by either party will so survive the completion of the performance or termination of this Agreement, including without limitation, Section 5.2 (Disclaimer of Warranties), Section 6 (Indemnification), Section 7 (Confidentiality), Section 9 (Limitation of Liability), and the relevant sections of this Section 11 (General).
6. Compliance with Laws/Export. Each party will comply with all applicable laws, regulations, and codes (including procurement of permits and licenses, when needed) of their respective states, territories, and/or countries in the performance of this Agreement, provided such compliance is not in violation of the U.S. Government’s Export and Anti-boycott Rules and Regulations. The Services and related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable laws. You represent and warrant that You will (a) comply strictly with all legal requirements established under these controls; (b) cooperate fully with Faction in any audit or inspection that relates to these controls; and (c) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or person who or which is embargoed by Executive Order or any applicable law, including any rules, regulations or policies promulgated thereunder, unless You have obtained the prior written authorization of Faction and the appropriate governmental authority.
7. Limitations on Actions. Each party agrees that no claim (other than Infringement Claims) related to or arising under this Agreement will be brought more than two years after the time that the claim accrued.
8. Waiver. Any failure or delay by either party to exercise or partially exercise any right, power or privilege will not be deemed a waiver of any of the rights, powers, or privileges under this Agreement. A waiver by either party of a breach of any term, condition, or provision of this Agreement will not operate as, or be construed as, a waiver of any subsequent breach.
9. Governing Law/Jurisdiction & Venue. This Agreement will not be governed by the United Nations Convention on the International Sale of Goods. For all claims or any actions arising under or related to this Agreement, the governing law and venue will be in a court with competent jurisdiction as follows:
  - if You are incorporated in a country that is a member of the European Union or if You are an individual and reside in the European Union, the governing law will be the laws of Ireland, without regard to conflict of law principles, and the exclusive venue will be in Ireland;
  - if You are incorporated in the United Kingdom or if You are an individual and reside in the United Kingdom, the governing laws will be the laws of England and Wales, without regard to conflict of law principles, and the exclusive venue will be in London, England; and
  - If You are incorporated in a country, or if You are an individual and reside in a country, other than a) those countries who are members of the European Union or b) the United Kingdom, the governing law will be the laws of the State of Delaware, USA, without regard to conflict of law principles, and the exclusive venue will be in the state and federal courts located in New Castle County, Delaware, USA.
  Each party agrees not to bring an action in any other venue than the applicable venue set forth above. Each party agrees to waive all objections to the governing law and venue and agrees not to dispute the personal jurisdiction or venue of these courts.
10. Force Majeure. Except for payments amounts owed under this Agreement, a party will not be liable for damages resulting from delay or default (provided that party is without fault in causing such delay or default), if such delay or default is caused by conditions beyond its reasonable control, including without limitation, acts of God; natural disasters; war or other hostilities; labor disputes; civil disturbances; pandemics, disease, or epidemics; governmental acts, orders or regulations; or failures or fluctuations in electrical power, heat, lights, air conditioning or telecommunications equipment (each a “Force Majeure Event”). The party affected by the Force Majeure Event must immediately provide written notice to the other party of the reason for the delay or default and the likely duration of the delay or default. Except for payments owed under this Agreement, the performance of the party (or parties) affected by the Force Majeure Event, will be suspended during the Force Majeure Event. If, however, performance is not resumed within sixty (60) days after receiving notice of the Force Majeure Event, the other party may, by notice in writing, immediately terminate this Agreement.
11. Media Releases. Each party will treat this Agreement and its terms as Confidential Information and will make no press release or disclosure, whether written, oral or otherwise, regarding the existence of this Agreement or transactions contemplated by this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Notwithstanding any language to the contrary in this Agreement, a party may make any disclosure to the extent required by applicable laws, including securities laws or the rules of any stock exchange where a party’s securities are traded.
12. Non-Solicitation of Employees. During the term of this Agreement and for a period of one (1) year after termination or expiration of this Agreement, each party agrees that it will not, directly or indirectly, for itself or on behalf of any person or entity, solicit any employees of the other party who had significant involvement with delivery of Services or Professional Services under this Agreement for the purpose of inducing such employees to terminate their employment to become employees or independent contractors. The foregoing will not apply to nonspecific general solicitations (e.g., Internet or newspaper).¹In the event multiple Customer entities are using the Services, the place of incorporation of the Customer entity that has executed this Agreement will determine governing law and venue.
13. Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the parties under this Agreement will be deemed to create an agency, partnership, employment, or joint venture relationship between the parties. Each party will be deemed to be acting solely on its own behalf and has no authority to bind the other to any third party.
14. Order of Precedence. In the event of a conflict between the terms of this Agreement and the terms of any other agreements between the parties, this Agreement will control. Where You have a direct billing relationship or Subscription with Faction, then the Faction service order associated with the Subscription will control in the event of a conflict with this Agreement. In the event You are required to issue a purchase order, such purchase order may be accepted by Faction for administrative convenience only, but the terms and conditions of any such Customer purchase order will be null and void and will not take precedence over this Agreement or any Faction Subscription. Further, other than providing the Services specified in a Subscription, Faction will not be, and is not, bound by the terms and conditions of any other agreements (including Subscription agreements) between Customer and any other party, including but not limited to an Approved Entity.
15. Use of Subcontractors. Faction may, in its discretion, engage subcontractors to perform Services under this Agreement, provided such subcontractors are required to comply with the confidentiality and other obligations described in this Agreement. Engagement of a subcontractor will not excuse Faction from any of its obligations under this Agreement and Faction will be liable for any breach of this Agreement by its subcontractors.
16. Non-Exclusive Agreement. The arrangement set forth in this Agreement is non-exclusive and this Agreement will not prevent or prohibit either party from entering into similar agreements with other providers or purchasers or licensors of products or services like those under this Agreement.
17. Government Customers. By accepting this Agreement, You represent that You have complied and will continue to comply with all applicable laws and governmental procurement requirements.
18. Prevailing Language. This Agreement has been drawn up, negotiated, and executed in the English language. In case of discrepancies, conflict, or inconsistencies between the English text version of this Agreement and any translation, where the translation of this Agreement was prepared for convenience or any other purpose, the English version will prevail. Further, if You assert that any other agreements or documents apply to the parties, the English version will control.
19. Entire Agreement. Except for any fully-executed MNDA between the parties, this Agreement (including the AUP, SLA, and any applicable exhibits or other agreements incorporated by reference) constitutes the entire agreement, understanding and representations, expressed or implied, between Faction and You with respect to the subject matters described, and supersede all prior written and oral communications, agreements, letters of intent, representations, warranties, statements, negotiations, understandings and proposals, with respect to such subject matters. Headings used in this Agreement are for ease of reference only and will not affect the construction or interpretation of this Agreement.
20. Execution and Counterparts. If You are an individual accepting these terms on behalf of an entity, You represent and warrant that You have the legal authority to enter into this Agreement on that entity’s behalf, whether executing with a “wet” or electronic signature or via click wrap or other acceptable means. If You specify an entity, or You use an email address provided by an entity You are affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this Agreement.

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