Terms of Use (Organizations)

Last updated: July 9, 2023

These Customer Terms and Conditions are entered into by and between Coderbyte Enterprise Inc. (“Coderbyte”) and the Customer identified in the applicable Order. By executing a Coderbyte proposal or other ordering document which references these Terms, or completing Coderbyte’s standard online ordering process (each, an “Order”), you or the entity you represent (“Customer”) agree to be bound by and a party to these Terms (together with all Orders, this “Agreement”) to the exclusion of all other terms.

1. DEFINITIONS

1.1 “Admin” means a Customer employee or authorized consultant who, with sufficient permissions, accesses the Coderbyte Platform for the purposes of evaluating Candidates, accessing reporting features, and paying invoices for the Services.

1.2 “Assessment” means any type of asynchronous or synchronous test designed to evaluate a Candidate’s skills and/or personality. 1.3 “Assessment Invite” means an email or URL sent by Customer or by Coderbyte on behalf of Customer to Candidates that reflects their eligibility to participate in an Assessment.

1.4 “Candidate” means a Customer’s candidate or other individual who is eligible to participate in an Assessment.

1.5 “Coderbyte Account” means an account created by an Admin or Candidate on the Coderbyte Platform that is linked with Customer.

1.6 “Coderbyte Platform” means Coderbyte’s proprietary online technology platform, through which Coderbyte provides Evaluation Services to Candidates and the Services to Customer.

1.7 “Customer Data” means all information and data provided directly by Customer or collected directly from Candidates by Coderbyte or its third-party service providers via the Coderbyte Platform, including information provided by Customer for Assessment Invites, which includes the following information: (a) contact information (first name, last name and personal email address); and (b) candidate feedback (thumbs up, thumbs down, star ratings, and comments).

1.8 “Data” means, collectively, Customer Data and Usage Data.

1.9 “Evaluation Services” means the services provided by Coderbyte to Candidates via the Coderbyte Platform, which include, among other things, the ability to participate in Assessments for the purpose of demonstrating skills and/or personality traits while being monitored for behaviors indicating cheating and receiving feedback from Customer.

1.10 “Services” means the services described in an Order.

1.11 “Stripe” means Stripe, Inc.

1.12 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.

1.13 “Usage Data” means data and other information arising from the use of the Coderbyte Platform, which may include, among other things, location, automated grades, keystrokes, plagiarism detection, and aggregate cohort performance.

2. CODERBYTE’S RESPONSIBILITIES

2.1 Services. During the Subscription Period, Coderbyte will perform the Services for Customer.

2.2 Platform Availability; Evaluation Services. During the Subscription Period, Coderbyte will: (a) make available applicable portions of the Coderbyte Platform to Candidates and Admins who have valid Coderbyte Accounts; and (b) provide the Evaluation Services to Candidates.

2.3 Future Products and Services. From time to time, Coderbyte may make additional products and services, or additional features and functionality of existing products and services, available to its customers, including Customer. Such additional products and services, or such additional features and functionality, may be governed by additional terms and conditions, which Coderbyte will provide to Customer at such time.

2.4 Requested Modifications to the Order. From time to time, Customer may request that Coderbyte modify the Services provided to Customer under the then-current Order. Potential modifications include, but are not limited to, any changes to the following: the features enabled and the number of Assessment Invites. Customer acknowledges that any requested modifications to its then-current Order may incur additional Fees (as defined below).

3. CUSTOMER’S RESPONSIBILITIES

3.1 Provision of Customer Data. To facilitate Assessment Invites, Assessments, Evaluation Services, and the linking of Coderbyte Accounts with Customer, Customer will provide the Customer Data to Coderbyte. Customer represents and warrants that any Customer Data provided to Coderbyte is truthful, complete and accurate, and that Customer has sufficient rights to provide the Customer Data to Coderbyte in connection with this Agreement, including providing notice to and obtaining consent from Candidates for the collection, use and disclosure of Customer Data, as required under applicable law. If Coderbyte becomes aware of any inaccurate, misleading, or fraudulent Customer Data (“Invalid Data”), Coderbyte’s sole obligations under this Agreement shall be to report the Invalid Data to Customer. For purposes of clarity, Customer’s obligation to pay Fees for Services that have been processed by Coderbyte in connection with this Agreement shall not be waived or otherwise affected by any such Invalid Data.

3.2 Communications. Customer shall provide all reasonable assistance to Coderbyte to inform all Candidates about the details of relevant Evaluation Services. ​

3.3 Third Party-Products. Coderbyte may from time to time make Third-Party Products available to Customer or Coderbyte may allow for certain Third-Party Products to be integrated with the Coderbyte Platform to allow for the transmission of Customer Data to or from such Third-Party Products and the Coderbyte Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Coderbyte is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. Currently, Coderbyte makes available to Customer integrations for WorkOS (https://workos.com/legal/privacy), Zapier (https://zapier.com/legal/data-privacy), and Growhire (https://growhire.com/privacy/). If Customer (or the applicable Candidate or Admin) does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not use such Third-Party Products. By authorizing Coderbyte to transmit Customer Data from Third-Party Products into the Platform, Customer represents and warrants to Coderbyte that it has all right, power, and authority to provide such authorization.

4. ADMINS AND CANDIDATES; DATA RIGHTS

4.1 Data Rights.

(a) Purpose and Permissions. Coderbyte will retain, use and disclose the Customer Data for the sole purpose of performing the Services and for no other purpose without Customer’s prior written approval. Without limiting the generality of the foregoing, Customer hereby permits Coderbyte to use Customer Data to send Assessment Invites and other emails to Candidates during the Subscription Period.

(b) Customer Data and Usage Data. For purposes of clarity, Coderbyte’s rights to process Customer Data are set forth in the Privacy Policy (https://coderbyte.com/privacy-org), and Coderbyte will in certain instances collect such Customer Data directly from Admins or the applicable Candidate. In addition, Coderbyte will provide Customer with Usage Data.

(c) Data Protection. Each party shall implement and maintain an information security program comprised of reasonable physical, technical and organizational safeguards designed to protect the security, integrity and confidentiality of Data against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access. Such information security program may include: (i) reasonable physical security controls with respect to all premises in which Data will be processed and/or stored by such party; (ii) reasonable precautions taken with respect to the employment of and access given to Data to such party’s personnel; and (iii) a network security program that includes (A) policies and procedures to address: network security, virus protection, protection of information in transit, change controls, segregation of duties, separation of production and development environments, technical architecture management, audit logs, network segregation, and vulnerability assessments; (B) testing and auditing of all controls; and (C) appropriate corrective action and incident response plans. If a party determines that unauthorized access, acquisition, disclosure or use of Data provided to it by the other party has occurred (each a “Security Incident”), then such party shall promptly give the other party Notice of such event and shall reasonably cooperate with such other party's investigation of such event. If such event triggers any third-party notice requirements, the party undergoing the Security Incident shall be solely responsible for the timing, content, cost and method of any such notice and compliance with all applicable laws.

(d) EU Resident Data; State Privacy Rights. If any Data will be processed under this Agreement that relates to (i) residents of the European Union and is subject to the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”), (ii) residents of the State of California and is subject to the California Consumer Privacy Act, as amended by the California Privacy Rights Act of 2020 (the “CPRA”), or (iii) residents of Virginia and is subject to the Virginia Consumer Data Protection Act (“VCDPA”), the parties will also enter into the data processing addendum available at coderbyte.com/dpa (the “DPA"), as updated from time to time, by entering into this Agreement. The terms of the DPA will be incorporated into this Agreement.

5. PAYMENTS AND TAXES

5.1 Fees. Customer agrees to pay, and shall pay, the fees set forth on the Order (the “Fees”). The Fees will be invoiced as set forth on the Order. Customer shall pay each invoice issued by Coderbyte hereunder via an available payment method specified in its Coderbyte Account or as otherwise agreed to by the parties in writing. For purposes of clarity, the Fees may be modified by Coderbyte at each renewal period. If Customer does not agree to the modified Fees, Customer may exercise its right not to renew the Agreement at that time. All payments shall be made in the currency specified on an applicable invoice in immediately available funds, and are non-refundable. In addition to the foregoing, if Customer is delinquent in its payment of Fees due and payable under this Agreement for any period of time, Coderbyte reserves the right to suspend and/or terminate Admins’ and Candidates’ access to the Coderbyte Platform and Evaluation Services, delete Usage Data, and delete Customer Data.

5.2 Canceling Orders. If you would like to change or cancel an Order, do so by navigating to the billing section of your account or by emailing us at [email protected] with the subject line “Change/Cancel Order.” You have until the day that Fees for your next Order are due to cancel your Order. Customers may not cancel subsequent Orders. For purposes of clarity, a Customer (i) cannot request and then cancel an Order upon canceling the immediately preceding Order, (ii) a Customer must immediately pay any Order requested after canceling a preceding Order, regardless of any public sales promotions, and (iii) a Customer may cancel non-sequential Orders.

5.3 Payment Processor. Coderbyte uses third-party payment processors (each a “Payment Processor”) to bill Customer. All Customer payment activity will be subject to the terms, conditions and privacy policies of the applicable Payment Processor in addition to this Agreement. Currently, Coderbyte uses Stripe as its Payment Processor. Customer may access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal/spc and their Privacy Policy at https://stripe.com/us/privacy. Coderbyte is not responsible for any error by, or other acts or omissions of any Payment Processor.

5.4 Taxes. The Fees are exclusive of, and Customer shall pay, any sales, use, and other taxes and similar charges based on or arising from this Agreement (other than taxes based on Coderbyte’s net income). If Coderbyte is required by law to pay any such taxes or similar charges to any governmental authority, Coderbyte will itemize such taxes in an invoice to Customer and Customer will reimburse Coderbyte therefor.

5.5 Changes to Orders. In the event of material changes to quantities of Candidates, features enabled, or other categories of Services, the parties shall execute a new Order subject to updated pricing and corresponding Fees.

6. WARRANTIES; DISCLAIMERS

6.1 General. Each party represents and warrants that: (a) such party is a corporation or limited liability company (as applicable) duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation, and has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (d) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.

6.2 Disclaimers. EXCEPT AS PROVIDED IN THIS SECTION 6, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES , THE MEMBER SERVICES, AND ALL RELATED INFORMATION, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON BEHALF OF CODERBYTE ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, AND CODERBYTE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, THAT THE CODERBYTE PLATFORM WILL BE ERROR-FREE, OR FITNESS FOR A PARTICULAR PURPOSE. CODERBYTE SHALL HAVE NO LIABILITY FOR DETERMINING USAGE DATA OR EVALUATION SERVICES WITH ACCURACY, AND CUSTOMER SHALL REMAIN SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL RULES, REGULATIONS, AND LAWS APPLICABLE TO ITS PROVISION OF REIMBURSEMENTS TO ITS EMPLOYEES.

7. TERM; TERMINATION

7.1 Term. This Agreement shall commence on the Effective Date and remain in effect during the Subscription Period set forth on the Order, and shall automatically renew for subsequent, equivalent periods of time unless Customer exercises its rights under Section 5.2.

7.2 Termination. Coderbyte reserves the right to terminate this agreement and block or prevent your access to the Coderbyte Platform, without providing you with notice or reason.

7.3 Survival. Upon termination or expiration of this Agreement, any provision of this Agreement that, by its terms or its nature should survive the termination or expiration of this Agreement shall so survive.

8. CONFIDENTIALITY

8.1 Definition. “Confidential Information” means any information disclosed by either party pursuant to this Agreement that is (a) in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days, or (c) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Without limiting the generality of the foregoing, Coderbyte’s Confidential Information includes Feedback, Customer Data, and Usage Data, and Customer’s Confidential Information includes Customer Data.

8.2 Duty. Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. Notwithstanding the foregoing, the obligations set forth in this Section 8 shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (b) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (c) is approved in writing by the disclosing party; (d) is required to be disclosed by applicable legal authority provided that, if practicable, adequate Notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (e) is independently developed by either party without use of the Confidential Information from the other party.

8.3 Return of Materials. In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that Coderbyte may retain copies of the Customer Confidential Information for routine backup and archival purposes.

9​.1 PROPRIETARY RIGHTS

9.1 Coderbyte’s Ownership Rights. As between the parties, Coderbyte shall retain all right, title, and interest in and to the Coderbyte Platform, the Services, Feedback, Usage Data, and Coderbyte’s Confidential Information.

9.2 Customer’s Ownership Rights. As between the parties, Customer shall retain all right, title, and interest in and to the Customer’s Confidential Information (including all Customer Data).

9.3 Feedback. If Customer or any of its employees or contractors submits, orally or in writing, feedback, suggestions, or recommended changes to any of Coderbyte’s products and services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Coderbyte is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. For the avoidance of doubt, any support tickets or support requests submitted by or on behalf of Customer constitute Feedback. Customer shall not include Customer Confidential Information in any such support ticket or request. Customer hereby assigns to Coderbyte on behalf of itself, and on behalf of its Agents, all right, title, and interest in and to the Feedback, including any ideas, know-how, concepts, techniques, or other intellectual property rights contained therein, and agrees that Coderbyte is free to use such Feedback, without any attribution or compensation to any party, for any purpose whatsoever. Coderbyte is not required to use any Feedback.

10. LIMITATIONS OF LIABILITY

EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNITY) OR A PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY) OR SECTION 4 (EMPLOYEES AND DEPENDENTS; DATA RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (A) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUE, DATA OR DATA USE, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY LIABILITY IN EXCESS OF THE AMOUNT PAID BY CUSTOMER TO CODERBYTE UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE GIVING RISE TO SUCH LIABILITY. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNT STATED HEREIN REFLECTS THE ALLOCATION OF RISKS AND THE LIMITATIONS OF EITHER PARTY’S LIABILITY HEREUNDER. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.

11. INDEMNITY

11.1 Mutual Indemnity. Each party will: (a) defend the other party and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all claims, suits, causes of action, or proceedings brought by a third-party (each a “Claim”) against the other party arising out of or resulting from: (i) any Security Incident affecting the systems of the indemnifying party or its vendors; (ii) the indemnifying party’s (or its personnel’s) gross negligence or more culpable acts; or (iii) the indemnifying party’s breach of its representations and warranties under this Agreement; and (b) indemnify the other party and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (“Losses”) resulting from or incurred in connection with such a Claim.

11.2 Customer Indemnity. Customer will: (a) defend Coderbyte and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any Claims arising out of or resulting from Customer’s (or its personnel’s) actual or alleged violation of Section 3.1; and (b) indemnify Coderbyte and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any Losses resulting from or incurred in connection with such a Claim.

11.3 Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) will provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt Notice of any Claim (provided that a failure to provide such Notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control of the defense and settlement of the Claim (provided that neither party may settle or dispose of any Claim in a manner that places any obligation of any kind on the other party without the other party’s prior written approval, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the Claim. The Indemnified Party may participate in the Claim at its expense. If the Indemnifying Party fails to assume control of a Claim within thirty (30) calendar days of its receipt of the Indemnified Party’s Notice, the Indemnified Party may assume full control of the Claim, and, without limiting its obligations under this Section 11, the Indemnifying Party will, promptly upon the Indemnified Party’s written request, reimburse the Indemnified Party for the Indemnified Party’s actual costs incurred in connection with its defense and settlement of such Claim.

12. MISCELLANEOUS

12.1 Publicity. Neither party shall issue or release any announcement, statement or press release relating to this Agreement without obtaining the express prior written consent of the other party. Notwithstanding the foregoing, during the Subscription Period, Customer shall use its commercially reasonable efforts to cooperate with Coderbyte in developing and sharing testimonials, case studies, marketing materials, return-on-investment calculations, and measurement criteria for the purpose of substantiating the value, benefits, and cost savings derived from the use of Coderbyte’s products and services. Additionally, Customer grants Coderbyte permission to use its name or logo in Coderbyte’s marketing materials, including Coderbyte’s website. Coderbyte shall include a trademark attribution notice giving notice of the Customer’s ownership of its trademarks in the marketing materials in which Customer’s name and logo appear.

12.2 Entire Agreement. This Agreement (including its exhibits) constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

12.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). All Notices to Coderbyte must be delivered by email (with confirmation of transmission) to [email protected]. Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.

12.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.6 Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city and county of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

12.7 Dispute Resolution. The parties agree to first attempt to resolve any disputes between them informally through negotiation. If the parties are not able to resolve the dispute after thirty (30) days, then the parties agree to resolve the dispute through binding arbitration by JAMS, Inc. (“JAMS”) under JAMS’ Optional Expedited Arbitration Procedures. The arbitration will be conducted in the State of New York unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

12.8 Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Coderbyte. Coderbyte may assign this Agreement in its entirety freely without restriction. Any purported assignment, transfer, or delegation in violation of this section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

12.9 Export Regulation. Certain aspects of the Services may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the U.S.

12.10 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 4.2, Section 8 or Section 11 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

12.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.