Master Services Agreement

This Master Services Agreement (this “Agreement”) is between HighMatch, LLC, a Georgia limited liability company (“HighMatch”, “we” or “us”) and the entity executing or electronically agreeing to an Order Form (“Customer” or “you”) and sets forth the terms under which HighMatch will provide and Customer will purchase a subscription to access and use certain HighMatch products and related services as further described herein. HighMatch and Customer are each referred to herein as a “Party” and together the “Parties.” 

By executing or electronically agreeing to an Order Form that incorporates this Agreement by reference, you are accepting and agreeing to the terms hereof (“Accept” or “Accepting”). If you Accept this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “Customer”, “you” and “your” shall refer to such entity and its Affiliates. If you do not have such authority, or if you do not agree with the terms of this Agreement, you must not Accept this Agreement and may not use the Services.

Capitalized terms shall have the meanings specified in Section 1 (Defined Terms) or as defined elsewhere in this Agreement.

1. Defined Terms

1. “Affiliate” means an entity controlled by or under common control with a Party where ”control” means ownership or control of more than 50% of the voting interests of the subject entity.
2. “Agreement” means collectively, this Agreement and all documents attached to or linked within this Agreement, together with all Order Forms executed and governed by this Agreement.
3. “Applicable Law(s)” means all applicable and duly enacted federal, state and local laws, statutes, rules and regulations that are binding on and applicable to a Party in the conduct of its respective business, including applicable Data Protection Laws.
4. “Authorized Users” means individually and collectively: (i) Customer’s Affiliates; (ii) “Customer Users” who are individuals authorized by Customer or its Affiliates (in writing, through Service’s security designation or by system integration) to access the Services on behalf of Customer or an Affiliate (e.g., Customer/Customer Affiliate employees inviting and/or reviewing Candidates); and (iii) “Candidates” who are applicants/candidates for employment invited by Customer Users to access the Services by utilizing an access link or other access authorization provided by Customer Users.
5. W“Customer Configurations” means Services components that Customer may configure, set or implement independently (i.e., self-serve) or that Customer may designate, direct or approve for HighMatch to implement or configure on Customer’s behalf.
6. “Customer Data” means data, materials and information provided, inputted or submitted by Customer or an Authorized User to the Services, which may include, without limitation: (i) Customer Personal Data; (ii) interview and/or assessment responses; (iii) reviewer comments and/or Candidate ratings; (iv) Customer-provided interview or assessment questions, tests, questionnaires, scoring models, report data;  and (v) Customer’s trademarks, copyrights, tradenames and logos.
7. “Customer Personal Data” is as defined in the Data Processing Addendum.
8. “Data Processing Addendum” or “DPA” means the Data Processing Addendum incorporated into this Agreement as an Appendix attached hereto. For clarity, if a DPA is attached to this Agreement as an Appendix or is separately signed by the Parties, such Appendix or separately signed DPA will govern and control over the DPA linked above.
9. “Data Protection Law(s)” is as defined in the Data Processing Addendum.
10. “HighMatch Content” means HighMatch’s information, content, reports, items, choices, and materials contained within the Services and/or otherwise made available by HighMatch to Customer via delivery of the Services, exclusive of Customer Data.
11. “HighMatch IP” means HighMatch’s proprietary technologies, material, processes, and information (including any and all modifications, updates and enhancements thereto and derivatives thereof) that underlie, form the basis for, or are otherwise deployed by HighMatch in connection with provision of the Services, including, without limitation: (i) software and hardware; (ii) source and object code; (iii) algorithms, user-interfaces, scoring components (e.g., weights and measures), scoring data, scoring syntax, outputs, technical logs, usage information, information systemically captured or computed, know-how, trade secrets, techniques, methodologies, works of authorship, designs, formats, tangible or intangible technical material or information, and data generated by or through the Services; and (iv) predictive, statistical, comparative, index, derivative, and contextual information.
12. “IP Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
13. “Order Form” means all statements of work (SOW), service orders, order form(s) and/or other ordering documents, as applicable, mutually executed by the Parties identifying any of the Services being purchased by Customer and specifying the Fees, Parameters for Use, other applicable commercial terms. Each executed Order Form shall be incorporated into and governed by this Agreement.
14. “Professional Services” means the product implementation, training, and/or other professional services to be provided by HighMatch to Customer, to the extent purchased by Customer under an Order Form.
15. “Services” means the products and services offered by HighMatch (including software solution product(s), applications, and related technologies, as well as any Professional Services) that are ordered by Customer as specified on the applicable Order Form.
16. “Subscription Term” means the duration for which HighMatch will provide and Customer will have access to the applicable Services under any individual Order Form.
17. “Talent Management Activities” means Customer’s activities, policies, practices, decisions and actions related to or in connection with its talent recruiting, selection, acquisition, development, retention and/or management activities in its capacity as a recruiter and/or employer and all legal compliance obligations associated therewith.

2. License Grant: Pursuant to the terms and conditions of the Agreement and the applicable Order Form(s), for the applicable Subscription Term(s) set forth therein: (i) HighMatch shall make the Services available to Customer and/or provide the Professional Services ; and (ii) as may be necessary to receive the Services, HighMatch grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable (upon termination as provided herein) and limited subscription to remotely access and use the applicable Services solely for Customer’s internal business purposes, and in accordance with this Agreement.

3. Fees and Service Limits.

1. Fees. The fees for Services (the “Fees”), invoice and payment schedule are as set forth in the Order Form. Except as otherwise expressly set forth herein, Order Form obligations are final and non-cancelable, and Fees are non-refundable. If Customer disputes any invoiced fees, Customer must notify HighMatch in writing within thirty (30) days after invoice date. If payment of any undisputed amount is more than thirty (30) days past due, HighMatch may suspend the Services upon notice to Customer, without liability to Customer, until such amounts are paid in full.  For the avoidance of doubt, a suspension shall not modify the Subscription Term or the obligations for payment of Fees under the Agreement and Customer will remain obligated to pay all Fees related to the suspension period.
2. Taxes. Customer is responsible for sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to the Services covered by each Order Form, whether domestic or foreign (“Taxes”). If HighMatch has a legal obligation to pay or collect Taxes for which Customer is responsible under the Agreement, the appropriate amount shall be computed based on Customer’s “ship to” address, unless Customer provides HighMatch with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. Customer Use and Responsibilities.

1. Standard Use Restrictions. Neither Customer nor its Authorized Users shall, nor permit any third party to, do or attempt to do any of the following with respect to or in connection with the Services HighMatch Content, or HighMatch IP: (i) distribute, disseminate, resell, sublicense or otherwise make available to any third party (except to Authorized Users as permitted herein); (ii) breach the use rights granted herein or otherwise attempt to gain unauthorized access; (iii) translate, reverse engineer, dismantle, decompile, disassemble, or attempt to reconstruct, derive or intrude; (iv) misuse by sending spam or any other form of duplicative or unsolicited messages; (v) modify or create derivative works from or copy or duplicate any features, functions, integrations, interfaces or graphics; (vi) remove, obscure, or alter any proprietary rights notice or add any other notices or markings; (vii) incorporate, merge, combine or integrate any part thereof into any other product, software, interface, process or service; (viii) access or use to build a competitive product or service or otherwise to the detriment of HighMatch of its business; (ix) use in any manner which infringes or violates any IP Rights of HighMatch or of any third party or violates Applicable Law; or (x) use other than expressly authorized by any applicable end under license agreement or acceptable use policy.
2. Use Obligations. Customer is solely responsible and HighMatch takes no responsibility for the following: (i) Customer’s compliance with Applicable Laws in connection with Customer’s use of the Services; (ii) Customer’s Talent Management Activities; and (iii) Customer Configurations. You agree to use commercially reasonable efforts to prevent unauthorized access to or use of the Service and will notify us promptly of any such unauthorized access or use, or any violation of the terms of this Agreement.
3. Candidate Terms of Service. Customer acknowledges and agrees that all candidates you invite to take assessments through the Service (“Candidates”) will be required to accept and agree to be bound by our Candidate Terms of Service (as modified by us from time to time) prior to taking such assessment(s). A copy of the current Candidate Terms of Service is available upon request.
4. Accommodation. The Services may include the ability for Customer to present Candidates with instructions for requesting accommodation. Customer is solely responsible for (i) providing HighMatch with Candidate-facing instructions for requesting an accommodation, (ii) engaging in the “interactive process” with any Candidate who requests accommodation, (iii) making determinations regarding the reasonableness, effectiveness, or potential undue burden associated with any requested accommodation, and (iv) providing any accommodations to a Candidate, including any accommodation that may be needed to ensure accessibility.

5. Limited Warranty.

1. HighMatch Performance Warranty. HighMatch warrants that: (a) it will provide the Professional Services, if applicable, in a professional and workmanlike manner; and (b) the Services shall function in all material respects in accordance with the specifications set forth in the applicable Order Form during the Subscription Term (the “Performance Warranty”). For any breach of the Performance Warranty, Customer must promptly notify HighMatch in writing and as HighMatch’s sole obligation and Customer’s sole and exclusive remedy, HighMatch will promptly re-perform, repair, update or replace the applicable Services or Professional Services to address such deficiency, and if HighMatch is unable to address such deficiency within a reasonable period of time, Customer may terminate the applicable Order Form and receive a prorated refund of any fees prepaid for the remainder of the Subscription Term following termination.
2. Disclaimers. EXCEPT FOR THE PERFORMANCE WARRANTY, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (1) HIGHMATCH MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUALITY; (2) HIGHMATCH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, NOR TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES; AND (3) THE SERVICES ARE PROVIDED ‘‘AS IS’’ AND USED AT CUSTOMER’S OWN RISK.  THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER. CUSTOMER AGREES NOT TO BRING, FILE, OR PARTICIPATE IN ANY CLAIM, SUIT, OR COMPLAINT AGAINST HIGHMATCH REGARDING ANY TALENT MANAGEMENT ACTIVITIES.

6. Intellectual Property Rights and Ownership.

1. HighMatch’s IP Rights and Ownership. Customer agrees that all right, title and interest (including IP Rights) in and to the Services and HighMatch Content, and all updates thereto and all derivatives thereof, are owned exclusively by HighMatch. This Agreement grants subscription access and license rights as described herein and except for the limited rights expressly granted herein, no other rights are granted and no other use permitted. All rights not expressly granted by HighMatch to Customer under this Agreement are reserved to and retained by HighMatch. This Agreement is not a sale and does not assign, transfer or convey to Customer or any Authorized User any rights of ownership or any IP Rights (except as expressly set out in this Agreement) in or related to the Services or HighMatch Content. Notwithstanding anything herein to the contrary, the Agreement does not grant, assign, transfer or convey to Customer or any Authorized User any right, title, license, or interest of any kind in or to any HighMatch IP, all of which is owned exclusively by the HighMatch. HighMatch has a royalty-free, worldwide, transferable and perpetual right and license to use and/or act upon any suggestions, ideas, enhancement requests, recommendations or other feedback provided by Customer and/or its Authorized Users relating to the operation or functionality of the Services.
2. Customer’s IP Rights and Ownership. As between HighMatch and Customer, HighMatch agrees that all right, title and interest (including IP Rights) in and to all Customer Data are owned exclusively by Customer. All rights in and to the Customer Data not expressly granted by Customer to HighMatch under this Agreement are reserved to and retained by Customer. Customer represents that it owns or otherwise has, and at all times during the Subscription Term will have, the necessary rights and consents in and relating to the Customer Data, so that, as received by HighMatch and processed in accordance with the Agreement, such activities do not and will not be in violation of Applicable Law or result in infringement, misappropriation or violation of any rights of any third party. Customer hereby grants to HighMatch a license to reproduce, display and use Customer Data as necessary to provide and enhance the Services.

7. Confidentiality.

1. Personal Information Requests. Depending on your location and applicable laws, you may have the following data protection rights:

1. Confidential Information. For the purposes of the Agreement, “Confidential Information” means the terms of the Agreement and any other information (including technical or business information, product designs or roadmaps, requirements, pricing, security and compliance documentation, technology, inventions or know-how) disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (“Recipient”), in any form, which (a) Disclosing Party identifies to Recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Recipient’s obligations in this Section 6 do not apply to information that it can document: (1) is or becomes publicly available through no fault of Recipient, (2) it rightfully knew or possessed prior to receipt from Disclosing Party without confidentiality restrictions, (3) it rightfully received from a third party without confidentiality restrictions, or (4) it independently developed without using or referencing Disclosing Party’s Confidential Information.
2. Confidentiality Obligations. Each Party, in its capacity as Recipient, agrees it will: (a) use Confidential Information of Disclosing Party only for and to the extent necessary to perform its obligations or exercise its rights under the Agreement or as otherwise permitted in writing by the Disclosing Party (“Purpose”), (b) not disclose Confidential Information to third parties without Disclosing Party’s prior approval (except as permitted below), (c) protect Confidential Information using at least the same precautions Recipient uses for its own similar information and no less than a reasonable standard of care, (d) not remove proprietary markings from Confidential Information or reverse engineer technology provided as Confidential Information, and (e) not export Confidential Information or any direct product of Confidential Information in violation of export laws.
3. Disclosure to Representatives. Recipient may disclose Confidential Information to its employees, agents, advisors, Affiliates, contractors, current or prospective investors, lenders, or acquirers (collectively, “Representatives”) having a legitimate need to know in furtherance of the Purpose, provided these Representatives are bound by confidentiality obligations no less protective of Disclosing Party’s Confidential Information than contained in this Section 6 and that Recipient remains responsible for their compliance with the terms of the same. Recipient may disclose Confidential Information to the extent required by law, subpoena or court order, provided (to the extent legally permitted) it provides Disclosing Party reasonable advance notice of the required disclosure. In the event that such protective order or other remedy is not obtained, or Disclosing Party grants a waiver hereunder, Recipient may furnish that portion (and only that portion) of the Confidential Information which Recipient is legally compelled to disclose, and exercise reasonable efforts to obtain confidential treatment for the Confidential Information. Disclosing Party shall have the right to seek injunctive relief to enjoin any breach or threatened breach of this Section 6 (in addition to other remedies available at law or in equity), it being acknowledged by the Parties that other remedies may be inadequate.

8. Customer Data.

1. HighMatch’s Data Protection Obligations. HighMatch acknowledges that some Customer Data may contain Customer Personal Data, and HighMatch represents and warrants it will take commercially reasonable steps to protect Customer Personal Data in HighMatch’s possession or control by complying with the obligations set forth in the Data Processing Addendum. HighMatch will implement, maintain, and follow reasonable, industry-standard technical and organizational measures (as more fully specified in the DPA) designed to secure and protect Customer Personal Data in compliance with Applicable Laws. 
2. Data Retention and Export. Customer hereby directs HighMatch to store Customer Data during the applicable Subscription Term, after which period HighMatch may delete it in accordance with its policies. HighMatch will promptly delete all Customer Data in HighMatch’s possession upon receipt of written request from Customer.  Upon termination or expiration of this Agreement or the applicable Order Form, HighMatch shall have no further obligation to store Customer Data.  Customer may obtain an export of Customer Data via the Services prior to expiration or termination of this Agreement and HighMatch shall have no liability with respect to Customer Data after such data is extracted from the Services.
3. HighMatch Data Usage Rights. Customer grants HighMatch the right to use Customer Data in connection with performance and enhancement of the Services. HighMatch may collect, use and retain data derived from Customer’s use of the Services (“Usage Data”) for purposes of its internal research and development, including training and product improvement. HighMatch retains all rights in and to the Usage Data as well as all results and improvements arising from the research and development activity. Customer acknowledges that Usage Data may include aggregated Customer Data components but in no event shall Usage Data be published unless pseudonymized in a manner that does not identify, and cannot be re-identified to, Customer or any individual user.

9. Term

1. Agreement Term. The Agreement will commence on the Effective Date and will continue in effect (unless otherwise terminated as provided herein) for as long as there is an Order Form in effect hereunder; provided that (unless otherwise mutually agreed in writing by the parties) this Agreement will automatically terminate in the event there is no Order Form in effect for a period of twelve (12) consecutive months (the “Term”).
2. Subscription Term and Renewal. The initial period of the Subscription Term: (i) is as specified in the applicable Order Form; and (ii) shall automatically renew for successive renewal periods equal to the longer of (a) the Subscription Term initial period, or (b) one (1) year. For clarity, if an Order Form specifies a multi-year period (i.e., greater than one (1) year), the full multi-year period shall be deemed the “initial period” of the Subscription Term, and renewal periods shall commence after completion of the multi-year period. If either Party intends not to renew the applicable Order Form, written notice of non-renewal must be delivered to the other Party at least sixty (60) days prior to the end of the then-current Subscription Term period (the “Renewal Notice Date”). Failure to deliver timely notice of non-renewal on or before the Renewal Notice Date shall result in automatic renewal of such Order Form.
3. Termination For Breach. Either Party may terminate the Agreement or any individual Order Form for cause if the other Party materially breaches any material obligation, representation or warranty and fails to cure the breach within thirty (30) days after receiving written notice from the non-breaching Party. Upon termination by HighMatch under this Section, Customer shall pay any and all Fees due or to become due under all Order Forms that was to be paid after the effective date of termination. Upon termination by Customer for an undisputed material breach pursuant to this Section (Termination for Breach), HighMatch shall provide a prorated refund of any prepaid Fees for the affected Service for the period after the effective date of termination. Any disputed breach claims shall be subject to dispute resolution process as set forth in this Agreement but unless or until resolved in Customer’s favor, such dispute shall not restrict or limit Customer’s payment obligations.
4. Effect of Termination. Upon termination of the Agreement or any individual Order Form, HighMatch will cease provision of the applicable Services and Customer’s right to access will immediately and automatically terminate. Upon termination of the Agreement, each Party shall return or destroy any Confidential Information and intellectual property of the other Party in its possession or control.
5. Surviving Provisions. Any provisions which by their terms extend beyond expiration or termination or which are necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of the Agreement, including without limitation, the Sections on fees, confidentiality obligations, IP rights/ownership, disclaimers, limitations on liability, term and termination, governing law/venue, dispute resolution and general provisions.

10. Indemnification.

1. HighMatch’s Indemnification Obligation. HighMatch agrees to indemnify, defend and hold Customer, and its officers, directors, employees, agents, successors and permitted assigns (“Customer Indemnitees”) harmless from and against any third-party claims, suits, actions, proceedings, demands, or judgments, and any resulting losses, payments, liabilities, fines, settlements, penalties, damages, costs, and expenses actually incurred (including reasonable legal fees) (collectively, “Third Party Claims”) to the extent arising from: (i) a third party claim alleging that Customer’s use of the Services in accordance with this Agreement infringes, violates or misappropriates such third party’s IP Rights (an “Infringement Claim”); or (ii) HighMatch’s fraud, gross negligence, or willful misconduct. 
2. Infringement Claims. In the event Customer’s use of Services is restricted, temporarily or permanently, by court order, due to an Infringement Claim, then HighMatch will, at its sole option and expense: (i) obtain for Customer the right to continue receiving the impacted Services, or (ii) replace or modify the impacted Services so they are non-infringing without materially decreasing functionality or performance, or (iii) in the event the first two options are not commercially reasonable, terminate the Services that are impacted by such Infringement Claim and refund to Customer any pre-paid but unused Fees associated with the terminated Service portion(s). Notwithstanding the foregoing, HighMatch will have no liability or obligation under this Section (Indemnification) with respect to any Infringement Claim that arises from Customer’s access or use that is unauthorized, in violation or breach of the Agreement or in combination with third-party software or systems (where the Infringement Claim would not be valid but for such combination). THE RIGHTS AND REMEDIES IN THIS SECTION 9 STATE HIGHMATCH’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE RIGHT AND REMEDY WITH RESPECT TO INFRINGEMENT CLAIMS. 
3. Customer’s Indemnification Obligation. Customer agrees to indemnify, defend and hold HighMatch and its Affiliates, and their respective officers, directors, employees, agents, successors and permitted assigns (“HighMatch Indemnitees”) harmless from and against any Third Party Claims to the extent arising from, related to, or alleging: (i) Customer’s use of or access to the Services in violation of this Agreement or Applicable Law; (ii) Customer Configurations, Customer Data, or Talent Management Activities; or (iii) Customer’s fraud, gross negligence, or willful misconduct.
4. Indemnification Process. The indemnifying Party’s obligations in this Section (Indemnification) are subject to receiving from the indemnified Party: (i) prompt notice of the claim (but delayed notice will only reduce the indemnifying Party’s obligations to the extent it is prejudiced by the delay), (ii) the exclusive right to control the claim’s investigation, defense and settlement; and (iii) reasonable cooperation at the indemnifying Party’s expense. The indemnifying Party may not settle a claim without the indemnified Party’s prior approval if settlement would require the indemnified Party to admit fault or take or refrain from taking any action (except regarding use of the Service when HighMatch is the indemnifying Party). The indemnified Party may participate in a claim (on a non-controlling basis) with its own counsel at its own cost and expense.

11. Limitations of Liability. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, HOWEVER CAUSED AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, WARRANTY, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE)), AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) EACH PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THE AGREEMENT SHALL BE LIMITED TO AND SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; AND (B) NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT LOSSES, COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, LOSS OF USE OR DATA. THE RIGHTS AND REMEDIES OF EACH PARTY UNDER THIS AGREEMENT CONSTITUTE A LIMITED, SOLE AND EXCLUSIVE REMEDY. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 ABOVE.

12. Miscellaneous.

1. General Provisions: The Agreement: (i) constitutes the complete agreement between the parties regarding the subject matter contained herein and unless expressly specified elsewhere herein, supersedes all prior and contemporaneous negotiations and agreements, written or oral between the parties related to the subject matter of this Agreement; (ii) may be amended only by a written instrument executed by a duly authorized representative of each Party and no usage of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement, or alter in any manner the terms of the Agreement; (iii) is not assignable by either Party except with the prior written approval of the other Party (not to be unreasonably withheld or delayed), except that either Party may assign this Agreement in its entirety (including all Order Forms), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity securities; (iv) is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns; and (v) may be signed in counterparts, each of which constitutes an original and all of which together constitute one and the same instrument and a signature transmitted via facsimile, scanned and electronically transmitted, or third party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing Party’s assent to the Agreement (and each component part thereof) shall be treated as originals and shall be legally binding.
2. Governing Law: This Agreement is made in accordance with and is governed and construed under the Laws of the State of Georgia, United States, without reference to such state’s conflicts of laws principles. Each Party consents to the sole jurisdiction and venue of the state or federal courts in the State of Georgia for actions related to the subject matter hereof and irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar ground. The United Nations Convention on Contracts for the International Sale of Goods or the Uniform Commercial Code or similar statutes shall not apply with respect to this Agreement. Either Party may: (i) apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory injunctive relief; (ii) seek redress in any court of competent jurisdiction in order to enforce its IP Rights or protect Confidential Information; or (iii) seek redress in any court of competent jurisdiction for claims relating to non-payment under this Agreement. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
3. Interpretation and Severability. If any provision of the Agreement is determined to be invalid or unenforceable under Applicable Law, the provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Law, and the remaining provisions of the Agreement shall continue in full force and effect. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Except as otherwise expressly stated in the Agreement, the rights and remedies of each Party under the Agreement constitute a limited, sole and exclusive remedy.
4. Order of Precedence. In the event of any direct conflict between this Agreement and any Order Form, the Order Form will control with respect to the Services covered under that Order Form. Terms, provisions or conditions contained in or on any purchase order, acknowledgement, vendor portal registration site, Customer terms or codes of conduct, “click through” or other online or pre-printed business form or writing that Customer may provide to HighMatch or use in connection with the procurement of Services (whether or not separately signed) (“Procurement Documents”) will have no effect on the rights, duties or obligations of the Parties hereunder, regardless of any failure to object to such Procurement Documents, and the terms of the Agreement shall in all cases govern over any conflicting terms contained in any such Procurement Documents.
5. Independent Contractor. HighMatch is being engaged as an independent contractor; nothing in the Agreement creates any agency, employment, partnership, fiduciary or joint venture relationship between the parties; and neither Party has authority to bind or obligate the other. Only HighMatch and Customer may enforce the Agreement and the parties agree that no third party is intended to benefit from, nor may any third party seek to enforce, any of the terms of this Agreement. Each Party is responsible for acts and omissions of its respective employees, agents, representatives and Customer is responsible for its Affiliate and Authorized User compliance with this Agreement and any breach by its Affiliates or Authorized Users shall be deemed a breach by Customer. Any reference herein to “Customer” shall include Customer Affiliates to the extent Customer Affiliates are accessing the Services or receiving Professional Services.
6. Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, without limitation, act of God, war, natural catastrophe, civil disobedience, court order, or third-party criminal activity (“Force Majeure Event”). Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay caused by a Force Majeure Event. Payment obligations shall not be delayed or excused as a result of Force Majeure Events unless provision of Service is also suspended or delayed by such event. In the event of a Force Majeure Event that continues for a period of thirty (30) days or more, either Party shall have the right to terminate this Agreement and/or any applicable Order Form(s) upon written notice to the other Party. 
7. Subcontracting. HighMatch uses subcontractors and permits them to exercise HighMatch’s rights and fulfill HighMatch’s obligations hereunder, but HighMatch remains responsible for such subcontractor’s compliance with and for its overall performance under this Agreement. This Section (Subcontracting) does not limit any additional terms applicable to sub-processors under the DPA.
8. Notices. HighMatch may give general notices applicable to all Customers by means of a notice in the Services or via an email to the designated Customer account administrator. All legal or dispute-related notices will be sent by nationally recognized overnight courier, if to HighMatch, attention Legal Department at 2970 Peachtree Rd, Suite 300, Atlanta, GA 30305, Attention: CEO; and if to Customer, to Customer’s account representative and address set forth on the latest Order Form with a copy via email to the designated Customer account administrator. The Parties may update their address for notices in writing from time to time by submitting updated information in accordance with this Section (Notices).
9. Export Controls. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the generality of the foregoing, Customer shall not make the Services available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.