iDesign Studio – Terms of Service
These iDesign Terms of Service (these “Terms”) are effective as of the effective date of the first Order Form (“Effective Date”) by and between iDesignEDU, LLC (“iDesign”) and the Customer identified on the Order Form (“Customer”) for access to and use of the iDesign Service in accordance with the following terms and conditions.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE SERVICE (OR ANY OTHER TECHNOLOGY, SERVICES, CONTENT, OR PRODUCTS OFFERED BY IDESIGN) IN ANY MANNER.
1. TERM. The term of this Agreement shall commence upon the earlier of the Effective Date or Customer’s first use of the Service and continue in full force until the expiration or termination of all outstanding Order Forms in accordance with the subscription period set forth on the relevant Order Form (the “Term”).
2. iDESIGN SERVICE
2.1 Service Access. Subject to the terms and conditions of this Agreement, and Customer’s payment of all relevant fees, iDesign grants to Customer a non-exclusive, non-transferable, non-sublicensable subscription to access and use, and allow its End Users to access and use, iDesign’s curriculum mapping and accreditation reporting suite of online curriculum development tools (the “Service”) and Documentation during the Term for Customer’s internal business use. “End Users” means Customer’s employees, contractors, and representatives who are authorized to access and use the Service on Customer’s behalf, and for which Customer will remain liable and responsible. Customer may, where expressly authorized in an Order Form, offer access to the Service to any affiliates, subsidiaries, parent corporations, or affiliate entities and Customer shall be responsible and liable for all access and use by such entities.
2.2 Restrictions. Customer and its End Users may only use the Service as authorized under an Order Form and in accordance with this Agreement and the then-current documentation, specifications, and instructions regarding the Service made generally available by iDesign to its customers and modified from time to time (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement, and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (a) permit any third party to access or use the Service other than an End User, (b) decompile, disassemble, modify, translate, distribute, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Service, except to the extent expressly permitted by applicable law, (c) rent, sell, or lease any rights in the Service in any form to any person, (d) use the Service or any iDesign Confidential Information to develop a competing product or service or build a product using similar ideas, features, functions, or graphics of the Service, (e) use the Service, or allow the transfer, transmission, export, or re-export of the Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, including by processing technical data restricted under applicable export law through the Service, or (f) remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the Documentation or Service, including any screen displays, or any other materials provided by iDesign hereunder. Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose. Customer may use the Service only for its internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates a third-party’s privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to Service or its related systems or networks. Under no circumstances will iDesign be liable or responsible for any use, or any results obtained by the use, of the Service in conjunction with any services, content, data, or technology not provided by iDesign. All such use will be at Customer’s sole risk and liability. iDesign reserves the right to modify the Service for any reason, without notice and without liability to Customer or any End User, to comply with applicable law and iDesign reserves the right to otherwise modify and update the Service from time to time in its discretion, provided iDesign does not materially reduce the functionality of the Service as set forth in the Documentation during any subscription period.
2.3 Support. During the Term, iDesign will provide Customer with reasonable support in connection with Customer’s authorized use of the Service during iDesign’s then-current business hours. iDesign will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with its then current Documentation. iDesign will provide Customer with Service updates and bug fixes that iDesign in its sole discretion makes generally available to its other similarly situated customers at no charge. However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which iDesign imposes an additional charge to its customers. New or different functionality may be purchased by Customer, in its discretion, at iDesign then current pricing.
2.4 Availability. iDesign shall take commercially reasonable measures to ensure the Service is available for access and use by Customer and End Users at all times, except during regularly scheduled and emergency maintenance. In the event the Service is unavailable, iDesign shall take commercially reasonable measures to correct the interruption as promptly as practicable.
2.5 Customer Responsibilities. Customer and its End Users shall be responsible, at their own cost and expense, for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Service, including hardware, software, operating systems, networking, web servers, telecommunication and Internet connections, and the like. Customer shall also be of the responsible for maintaining the security foregoing equipment and services and Customer’s login information, passwords and files. Customer is responsible for all uses of Customer and End User accounts with or without Customer’s knowledge or consent and for preserving and making adequate backups of its data.
2.6 Customer Data. Customer is responsible for all data Customer or its End Users places on or processes through the Service (“Customer Data”). iDesign does not endorse, approve, monitor, or vet any Customer Data placed on or generated through the Service or otherwise made available through or to iDesign or the Service in any way. All Customer Data is the responsibility of Customer, and iDesign shall not be liable for any reason for the contents, legality, appropriateness, accuracy, integrity, or use of any Customer Data. Customer represents and warrants that the Customer Data will not include any Restricted Information and Customer will not attempt to process any Restricted Information through the Service. “Restricted Information” means (a) government issued identification numbers, (b) credit card information, (c) financial account information, (d) medical records, health insurance information, or other health care related information, (d) education records and information subject to the Family Educational Rights and Privacy Act, (e) information regulated under International Traffic in Arms Regulations and/or (f) any other information that is considered “sensitive data” under applicable law.
2.7 BETA FUNCTIONALITY. iDesign may designate certain new functionality or technical features of the Service to be made available as “Beta Functionality.” Beta Functionality will be at an early stage of development and therefore operation and use of the Beta Functionality may be unpredictable and lead to operational malfunctions with respect to the Service. Customer acknowledges and agrees that: (a) the Beta Functionality will be experimental and will not have been fully tested; (b) the Beta Functionality may not meet Customer requirements; (c) the use or operation of the Beta Functionality may not be uninterrupted or error free; (d) Customer’s use of the Beta Functionality will be for purposes of evaluating and testing the new technical features and functionality of iDesign products and services and providing feedback to iDesign; and (e) Customer will inform its End Users regarding the nature of the Beta Functionality. Except as set forth in this Section, Customer’s use of the Beta Functionality will be subject to all of the terms and conditions set forth herein relating to the Service. Customer will promptly report any errors, defects, or other deficiencies in the Beta Functionality to iDesign. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BETA FUNCTIONALITY IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OR INDEMNITIES OF ANY KIND. Customer waives any and all claims, now known or later discovered, that Customer may have against iDesign and its suppliers and licensors arising out of Customer’s use of the Beta Functionality.
3. SERVICE FEES
3.1 Fees. Customer will pay iDesign the fees associated with the Service as set forth in the Order Form. Except as specifically provided hereunder, all fees are non-refundable and all Orders Forms are non-cancelable. Customer will pay all invoices in accordance with the Order Form. Payments not made in accordance with the Order Form will be subject to late charges equal to the lesser of (a) one and one half percent (1.5%) per month the overdue amount, or (b) the maximum amount permitted under applicable law. iDesign may increase fees annually under an Order Form by providing sixty (60) days advanced notice to Customer prior to the commencement of the applicable fee increase.
3.2 Taxes. Customer shall be responsible for those sales, use, and similar taxes associated with its use of the Service, excluding taxes based on iDesign’s real property, personal property, income, or personnel.
3.3 Other iDesign Products and Services. All other iDesign products and services requested by Customer shall be provided upon mutual agreement of the Parties and shall be subject to Customer’s payment of iDesign’s then-current fees and expenses.
4. REPRESENTATIONS AND WARRANTIES
4.1 Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement and to grant the licenses set forth herein; (b) use of Customer Data as permitted under this Agreement and Customer’s use of the Service does not and shall not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection); and (c) neither Customer nor any End Users shall make any representations with respect to iDesign, the Service, or this Agreement.
4.2 iDesign Warranty. iDesign represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement; (b) the Service will substantially comply with the Documentation; (c) it shall use commercially reasonable efforts to screen the Service for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (d) it shall comply with applicable law in performing this Agreement. In the event of a breach of the warranty in this Section, iDesign’s sole and exclusive liability and Customer’s sole and exclusive remedy will be for iDesign to use commercially reasonable efforts to correct the defect in the Service.
4.3 Disclaimer. EXCEPT AS PROVIDED IN SECTION 4.2, THE SERVICE AND ALL INFORMATION AND CONTENT AVAILABLE THROUGH THE SERVICE IS PROVIDED “AS IS,” “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS PROVIDED IN SECTION 4.2, IDESIGN AND ITS VENDORS AND LICENSORS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR NON-INFRINGEMENT. IDESIGN DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. FURTHERMORE, IDESIGN DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IDESIGN OR IDESIGN’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE SERVICE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT IDESIGN AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS SUCH AS HACKERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, PROPERTIES, COMPUTERS, OR NETWORKS. IDESIGN WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. IDESIGN DOES NOT WARRANT ANY DATA GENERATED THROUGH THE SERVICE WILL BE ACCURATE OR COMPLETE. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
5. PROPRIETARY RIGHTS; SERVICE DATA
5.1 Service. iDesign shall own and retain all right, title and interest in and to (a) the Service, all improvements, enhancements, customizations, configurations, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with the Service or support services, (c) any and all ideas, processes, techniques, designs, architecture, and “know-how” embodying the Service, (d) the Documentation, and (e) all intellectual property rights related to any of the foregoing. Under no circumstances will Customer be deemed to receive title to any portion of the Service, title to which at all times will vest exclusively in iDesign. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve the Service from any liens, encumbrances, and claims of any individual or entity. Customer will not use any iDesign intellectual property, data, or Confidential Information to contest the validity of any intellectual property rights of iDesign or its licensors, and any such use of the foregoing will constitute a material, non-curable breach of this Agreement.
5.2 Service Data. As between Customer and iDesign, Customer shall own all right, title, and interest in and to the Customer Data. Customer grants iDesign a non-exclusive, worldwide, royalty-free license to use the Customer Data for purposes of performing this Agreement. Customer shall retain a copy of Customer Data outside the Service. Customer is responsible for obtaining all rights, permissions, and authorizations with respect to the Customer Data for use as contemplated under this Agreement.
5.3 Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to iDesign with respect to iDesign products and services. Feedback is voluntary and iDesign is not required to hold it in confidence. iDesign may use Feedback for any purpose without obligation of any kind. iDesign may use any technical information it derives from providing its products and services relating to problem resolution, troubleshooting, product functionality, enhancements, and fixes, for its knowledge base. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants iDesign an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with iDesign’s business, including the enhancement of iDesign’s products and services.
5.4 Usage Data. iDesign shall have the right to collect, copy, and analyze data and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information concerning Customer Data and data derived therefrom), and iDesign may (a) use such information and data to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and other iDesign offerings, and (b) disclose such data, solely in aggregated or other de-identified form, in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.5 Third Party Services. The Service and Documentation may contain material, data, or information provided by third parties or permit integration with third party services (“Third Party Services”). If Customer or its End Users are required to agree to any third-party licenses or other terms and conditions, Customer shall be responsible for complying with such third-party terms and conditions and for compliance by its End Users. iDesign does not control Third Party Services and is not responsible for its content. The ability to use Third Party Services in connection with the Service does not imply any endorsement of the information and iDesign makes no representations or warranties with respect to any Third Party Services.
6. CONFIDENTIALITY. During the course of this Agreement, each party may disclose to the other certain non-public information or materials relating to the party’s operations, products and services, intellectual property, and other confidential information (“Confidential Information”). Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; or (d) was independently developed by a party hereto without reference to Confidential Information of the other party. If Confidential Information is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, the party receiving such subpoena or order will promptly inform the other party in writing and provide a copy thereof, and will only disclose that Confidential Information necessary to comply with such subpoena or order. Except as expressly provided herein, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party’s prior written consent, except disclosure to and subsequent uses by the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party’s obligations under this Agreement. Subject to the foregoing nondisclosure and non-use obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party will be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. Neither party will remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other party’s Confidential Information.
7.1 iDesign Indemnity. iDesign agrees to defend, indemnify, and hold harmless Customer and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party that Customer’s authorized use of the Service infringes or misappropriates that third party’s United States patent, copyright, trade secret, or other intellectual property rights. iDesign shall have no obligation to indemnify Customer to the extent the claimed infringement arises from or is based on (a) use of the Service in combination with any hardware, software, products, data, or other materials not provided by iDesign, (b) violation of law or this Agreement by Customer or its End Users, (c) misuse of the Service, or (d) Customer Data. Customer agrees that if its use of the Service becomes, or in iDesign’s opinion is likely to become, the subject of an infringement claim, iDesign shall have the right to immediately terminate this Agreement and return a prorated portion of any pre-paid, unused fees for the Service. THE PROVISIONS OF THIS SECTION 7.1 STATE THE SOLE AND EXCLUSIVE OBLIGATIONS AND LIABILITY OF IDESIGN AND ITS LICENSORS AND SUPPLIERS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, AND ARE IN LIEU OF ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT AND TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
7.2 Customer Indemnity. Customer agrees to defend, indemnify, and hold harmless iDesign and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of (a) any claim by a third party that the Customer Data infringes the intellectual property, publicity, or privacy rights of any person, or (b) any violation of applicable law by Customer.
7.3 Indemnification Procedure. Each party shall: (a) give the other party prompt written notice of any claim indemnified under this Section; and (b) allow the indemnifying party to control, and fully cooperate with the indemnified party (at the indemnified party’s sole expense) in, the defense and all related negotiations. An indemnifying party shall not enter into any stipulated judgment or settlement that purports to bind the indemnified party without the indemnified party’s express written authorization, which shall not be unreasonably withheld or delayed.
8. DISCLAIMER OF CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. IN NO EVENT SHALL IDESIGN, ITS VENDORS, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF SALES, TRADING LOSSES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE ARISING OUT OF OR CONNECTED IN ANY WAY WITH IDESIGN’S PERFORMANCE UNDER THIS AGREEMENT, OR USE OF OR INABILITY TO USE THE SERVICE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF IDESIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF IDESIGN AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICE IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY BY CUSTOMER FOR THE SERVICE. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
9. TERMINATION; SUSPENSION
9.1 Default. Each Party shall have the right to terminate this Agreement upon thirty (30) days’ written notice (or without notice in the case of nonpayment) in the event the other Party materially breaches any provision hereof and fails to cure such breach in the foregoing notice period.
9.2 Suspension. iDesign may, in its sole discretion, immediately suspend or terminate Customer’s access to the Service for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Service; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect iDesign from potential legal liability; or (d) in the event an invoice becomes past due. iDesign will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension. iDesign will promptly restore access to the Service as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on iDesign to monitor use of the Service.
9.3 Effect of Termination. Upon termination of this Agreement for any reason: (a) Customer and all End Users’ access to and use of the Service and Documentation will cease as of the effective date of termination; and (b) iDesign will cease to provide the Service to Customer and its End Users, and Customer will pay to iDesign all fees due to iDesign incurred hereunder through the effective date of expiration or termination, provided that in the event iDesign terminates this Agreement under Section 9.1 above, all fees due by Customer under the relevant Order Form shall be accelerated and become due and payable immediately upon termination. Within a reasonable time after expiration or termination of this Agreement for any reason, iDesign will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days.
9.4 Survival. The following Sections shall survive any termination or expiration of this Agreement: 3 (Service Fees); 4.3 (Disclaimer of Warranties); 5 (Proprietary Rights; Service Data); 6 (Confidentiality); 7 (Indemnification); 8 (Disclaimer of Consequential Damages; Limitation of Liability); 9.3 (Effect of Termination); 9.4 (Survival); and 10 (General).
10.1 Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties and obligations of the parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the parties. This Agreement may only be amended in a writing signed or electronically accepted by both parties.
10.2 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by recognized overnight delivery service to the address specified on the Order Form. Either party may change its address by giving notice to the other of the new address and the date upon which such change will become effective.
10.3 Assignment; Delegation. Customer may not assign or transfer any of its rights or delegate any of its duties hereunder, in whole or in part and whether by operation of law or otherwise, without the prior written consent of iDesign, and, absent such consent, any attempted assignment or delegation shall be null, void, and of no effect.
10.4 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
10.5 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
10.6 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder shall not be deemed a waiver of that right.
10.7 Force Majeure. Except for the payment of fees hereunder, if either party cannot perform any of its obligations because of any act of God, court order, war, riot, pandemic, Internet delays and failures, cybersecurity incidents, acts of terrorism, telecommunications failures, unavailability of components, labor difficulties, or any other cause not within the party’s reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing party will: (a) immediately notify the other party; (b) take reasonable steps to resume performance as soon as possible; and (c) not be considered in breach during the duration of the Force Majeure Event.
10.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE STATE OF TEXAS.
10.9 Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.
10.10 Electronic Signatures. This Agreement may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Customer’s acceptance will be deemed binding. Customer acknowledges and agrees it will not contest the validity or enforceability of these Terms or any Order Form, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.