USER TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “I AGREE TO THESE TERMS,” YOU AGREE TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement (this “Agreement”) by and between you and (“You” and “User”) and Aurelius Lab, LLC, a Delaware limited liability company (“Provider”). This Agreement is effective as of the date that You click “I Agree to These Terms” (the “Effective Date”). User’s use of and Provider’s provision of the Services (as defined below) are governed by this Agreement. If You do not want to agree to this Agreement, You must not access or use the Services.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT ANY PERSON AGREEING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. ANY PERSON EXECUTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND USER TO THESE TERMS AND CONDITIONS.

  1. DEFINITIONS.

    Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the respective meanings set forth below:

    1. “Customer” means the company or individual who uses the Services or accesses the Provider System pursuant to certain Customer TOS and through which User uses the Services or accesses the Provider System as permitted therein.
    2. “Customer TOS” means any agreement between Provider and Customer relating to such Customer’s use of the Services or access to the Provider System.
    3. “Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to User in any form or medium and which describe the functionality, components, features or requirements of the Services or the Service Software.
    4. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system or network or any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Customer or any other User from accessing or using the Services, the Service Software or the Provider System as intended by this Agreement.
    5. “Privacy Policy” means Provider’s privacy policy, currently posted at aureliuslab.com/privacy, as such policy may be updated from time to time pursuant to its terms.
    6. “Provider System” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
    7. “Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to as part of the Services.
    8. “Services” means software as a service that allows creation of and reporting for projects and input of related information regarding projects, project goals, research, customer insights data, project decisions, related project documentation and digital product measurement data, and suggestions for specific project related success indicators, measurement methods and metrics and product research methods and approaches, including hosting, managing, operating and maintaining the Service Software for remote electronic access and use by Customer and other users.
    9. “User Data” means (other than Resultant Data or any information, data or other content derived from Provider’s monitoring of User’s access to or use of the Services, which will not constitute User Data) any information, data and other content, in any form or medium, that is collected or otherwise received, directly or indirectly from User by or through the Services.
  2. SERVICES.
    1. Access and Use. Subject to the terms of the applicable Customer TOS (and any order related thereto) and the Privacy Policy and conditioned upon compliance with the terms and conditions of this Agreement, You will be authorized to access the Provider System and use the Services solely for the purpose of collaborating on Aurelius projects with Customer, so long as Customer authorizes such access, except for (a) Scheduled Downtime (as defined below), (b) Service downtime or degradation due to a Force Majeure Event or (c) any other circumstances beyond Provider’s reasonable control (including, without limitation, User’s or any other person’s use of third party materials, misuse of the Services or use of the Services other than in compliance with the express terms of this Agreement) or (d) any suspension or termination of Customer’s or User’s access to the Provider System or use of the Services for any reason. The above authorization is non-exclusive and, other than as may be expressly set forth in Section 12.4, non-transferable. Provider will use reasonable efforts to schedule downtime for routine maintenance of the Services between the hours of 9:00 p.m. and 3:00 a.m. Minneapolis time (“Scheduled Downtime”). User may reproduce and use the Documentation solely as necessary to support its use of the Provider System.
    2. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services, Service Software and Documentation (and other related information or materials provided or used by Provider) that it deems necessary or useful to (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
  3. SUSPENSION OR TERMINATION OF SERVICES.

    Without limiting any of Provider’s rights or remedies (including, without limitation, any rights or remedies at law in equity or under this Agreement), Provider may, directly or indirectly and by use of any lawful means, suspend, terminate or otherwise deny any User’s access to the Provider System or use of all or any part of the Services, the Service Software or Documentation, for any reason without incurring any resulting obligation or liability.

  4. USER DATA AND SECURITY.
    1. User Data. As between User and Provider, User is and will remain the sole and exclusive owner of all right, title and interest in and to all User Data, including all intellectual property rights relating thereto; provided, that User hereby irrevocably grants all such rights and permissions in or relating to User Data (a) to Provider and its subcontractors and personnel as are necessary to perform the Services and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder. Notwithstanding the foregoing, Provider may disclose User Data as required by applicable law or by proper legal or governmental authority. As permitted by applicable law, Provider shall give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s sole cost and expense.
    2. Prohibited Data. User acknowledges and agrees that the Services are not designed with security and access management for processing the following categories of data, information or other content (each, “Prohibited Data”): (a) information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, including, without limitation, data regulated by the Health Insurance Portability and Accountability Act or related rules or regulations; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data. User shall not, and shall not permit any other person to, provide any Prohibited Data to, or process any Prohibited Data through, the Services, the Provider System or any Provider personnel. User is solely responsible for reviewing all User Data provided to or processed through the Services, the Provider System or any Provider personnel and shall ensure that no such User Data constitutes or contains any Prohibited Data. USER ACKNOWLEDGES AND AGREES THAT PROVIDER HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE LAWS REGULATING SUCH PROHIBIT DATA OR OTHERWISE TO PROTECT PROHIBITED DATA AND THE PROVIDER SYSTEM MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR PROHIBITED DATA.
    3. User Control. User has and will retain sole responsibility for (a) all User Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of User in connection with the Services; (c) User’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by User or through the use of third-party services (“User Systems”); (d) the security and use of User’s access credentials; and (e) all access to and use of the Services and Documentation directly or indirectly by or through the User Systems or its access credentials.
    4. Access and Security. User shall employ all reasonable (and, at minimum, legally required) physical, administrative and technical controls, screening and security procedures and other safeguards to (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services and (b) control the content and use of User Data.
    5. Risk of Exposure. User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Provider System, User assumes such risks. Provider offers no representation, warranty, or guarantee that User Data will not be exposed or disclosed through errors or the actions of third parties.
    6. Data Accuracy. Provider shall have no responsibility or liability for the accuracy of data uploaded to the Provider System by User, including without limitation User Data.
    7. Data Deletion. Provider may permanently erase User Data if Customer’s or User’s account is delinquent, suspended, or terminated. The Services do not replace the need for User to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF USER DATA.
  5. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS.
    1. Acceptable Use. User shall not, and shall not permit any other person to, access the Provider System or use the Services, the Service Software or Documentation, except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, User shall not (and shall not permit any other person to):

      (a) copy, modify or create derivative works or improvements of the Services, the Service Software or Documentation;

      (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services, the Service Software or Documentation to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

      (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, the Service Software or Documentation, in whole or in part;

      (d) bypass or breach any security device or protection used by the Services, the Service Software, Provider System or Documentation or access or use the Services, the Service Software, Provider System or Documentation other than by an authorized User through the use of his or her own then valid access credentials;

      (e) input, upload, transmit or otherwise provide to or through the Services, the Service Software or the Provider System, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

      (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Service Software, the Provider System, Documentation or Provider’s provision of services to any third party;

      (g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, the Service Software or Documentation;

      (h) access or use the Services, the Service Software, the Provider System or Documentation in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer) or that violates any applicable law, including, without limitation, laws governing the protection of personally identifiable information and other laws applicable to the protection of User Data;

      (i) access or use the Services, the Service Software or Documentation for purposes of competitive analysis of the Services, the Service Software or Documentation, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or

      (j) otherwise access or use the Services or Documentation beyond the scope of the authorization granted under Section 2.1.

    2. Unauthorized Access. User shall take all reasonable steps to prevent unauthorized access to the Provider System. If User becomes aware of any actual or threatened activity prohibited by Section 5.1, then User shall immediately (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects and (b) notify Provider of any such actual or threatened activity.
  6. INTELLECTUAL PROPERTY.
    1. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the Service Software, Documentation or third party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Service Software, the Documentation and the third party materials are and will remain with Provider and the respective rights holders in the third party materials.
    2. Resultant Data. User hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all intellectual property rights relating thereto. Notwithstanding anything to the contrary in this Agreement, Provider may use, reproduce, sell, publicize, or otherwise exploit Resultant Data in any way, in its sole discretion.
    3. Feedback. Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that User provides to Provider, and nothing in this Agreement or in the parties’ dealings arising out of or relating to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting User. “Feedback” means any suggestion or idea for improving or otherwise modifying any of Provider’s products or services.
  7. CONFIDENTIAL INFORMATION.
    1. Confidential Information. “Confidential Information” means information in any form or medium that the Disclosing Party (as defined below) considers confidential or proprietary, including, without limitation, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations; provided, that Confidential Information does not include information that: (a) was rightfully known to the Receiving Party (as defined below) without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (d) the Receiving Party can demonstrate by written or other documentary record was or is independently developed by the Receiving Party without reference to or use of any Confidential Information; or (e) was or is Resultant Data.
    2. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, each party (as the “Receiving Party”) shall:

      (a) not access or use Confidential Information other party (as the “Disclosing Party”) than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

      (b) except as may be permitted by and subject to its compliance with Section 7.3, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;

      (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information; and

      (d) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 7.

    3. Compelled Disclosures. If the Receiving Party is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.2 and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.3, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
  8. REPRESENTATIONS & WARRANTIES.
    1. User. User represents, warrants and covenants to Provider that User owns or otherwise has and will have the necessary rights and consents in and relating to the User Data so that, as received by Provider and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.
    2. Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
  9. INDEMNIFICATION.
    1. Indemnification. User will indemnify Provider and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all losses incurred by such Provider Indemnitee in connection with any action by a third party (other than an affiliate of a Provider Indemnitee) to the extent that such losses arise out of or relate to any (a) User Data, including any receipt or processing of User Data by Provider in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of User, including, without limitation, Provider’s compliance with any directions provided by User; (c) allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by User, or any third party on behalf of User, in connection with this Agreement.
    2. Indemnification Procedure. A Provider Indemnitee will promptly notify User in writing of any action for which such Provider Indemnitee believes it is entitled. Such Provider Indemnitee will cooperate with User at User’s sole cost and expense. User will control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the such Provider Indemnitee to handle and defend the same, at User’s sole cost and expense; provided, that User may only enter into a settlement without the consent of such Provider Indemnitee so long as such settlement does not require any payment or admission of wrongdoing by any Provider Indemnitee. Such Provider Indemnitee’s failure to perform any obligations under this Section 9.2 will not relieve User of its indemnification obligations, except to the extent that User demonstrates that it has been materially prejudiced as a result of such failure. Such Provider Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
  10. LIMITATIONS ON LIABILITY.
    1. Exclusion of Damages. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  11. TERM AND TERMINATION.
    1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue the earlier of (a) the expiration or termination of the Customer TOS (or services thereunder) or (b) the termination of this Agreement or User’s access of the Provider System or use of the Services pursuant to this Agreement..
    2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement, Provider may terminate this Agreement and User’s access of the Provider System or use of the Services at any time for any reason.
    3. Effects of Termination. Upon termination of this Agreement:

      (a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;

      (b) Provider shall immediately cease all use of any User Data or User’s Confidential Information and, upon written request, erase all User Data and User’s Confidential Information from all systems that Provider directly controls; provided, that Provider may retain User Data in its backups, archives and disaster recovery systems until such User Data is deleted in the ordinary course (it being acknowledged and agreed that all such information and materials will remain subject to all confidentiality, security and other applicable requirements of this Agreement);

      (c) User shall immediately cease all use of any Services or Documentation and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Provider’s Confidential Information and (ii) permanently erase all Documentation in its possession or control and Provider’s Confidential Information from all systems User directly or indirectly controls; and

      (d) Provider may disable all User access to the Provider System, Services and Documentation.

    4. Surviving Terms. The following provisions will survive termination or expiration of this Agreement: Sections 5 (Customer Responsibilities and Restrictions), 6 (Intellectual Property), 7 (Confidential Information), 8.4 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitations on Liability), 11.3 (Effect of Termination), 11.4 (Surviving Terms) and 12 (Miscellaneous); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
  12. MISCELLANEOUS.
    1. Independent Contractors and Subcontractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    2. Notices. Provider may send notices pursuant to this Agreement to User’s email contact points provided by User, and such notices will be deemed received 24 hours after they are sent. User may send notices pursuant to this Agreement to contact@aureliuslab.com, and such notices will be deemed received 72 hours after they are sent.
    3. Force Majeure. In no event will either party be liable or responsible to the other party or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a ”Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    4. Assignment & Successors. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving User (or sale of equity resulting in a change of control of User) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.4 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    5. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall 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 so as 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.
    6. No Waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or of any other right, remedy, power or privilege.
    7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota 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 Minnesota. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in the city of Minneapolis and County of Hennepin, and each party unconditionally and irrevocably submits to the exclusive jurisdiction of, and waives all objections to the laying of venue (including any objection of forum non conveniens) in, such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
    8. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    9. Construction. This Agreement will not be construed in favor of or against either party by reason of authorship.
    10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. If there is any conflict between the terms or conditions of this Agreement and any Customer TOS, then the Customer TOS shall control.
    11. Amendment. Provider may amend this Agreement from time to time by posting an amended version at its Website and sending User written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless User first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next term pursuant to the applicable Customer TOS following the Proposed Amendment Date (unless Provider first terminates this Agreement pursuant to Section 11.1). User’s continued use of the Service following the effective date of an amendment will confirm its consent thereto. This Agreement may not be amended in any other way, except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.11, Provider may revise the Privacy Policy at any time by posting a new version of either at Provider’s website, and such new version will become effective on the date it is posted.
    12. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.