Terms and Conditions

1. Definitions

Defined terms used in this Agreement will have the meanings set forth below or as defined elsewhere in this Agreement:

"Authorized Users" means the employees, agents or contractors of Customer, who are authorized by Customer to access and use the Platform solely on behalf and for the benefit of Customer for Customer's internal business purposes.
"Customer Data" means any data transferred to Otti by Customer for input into the Platform, including any data input into the Platform by the Authorized Users.
"Intellectual Property Rights" means (a) patents, inventions, designs, copyright and related rights, database rights, know-how and Confidential Information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognized in the future; and (c) all applications, extensions and renewals in relation to any such rights.
"Platform" means Otti's proprietary software-as-a-service (SaaS) performance management platform.
"Third-Party Service" means any third-party service for which Customer enables an integration with the Platform.

2. Platform Access

Access Platform. Subject to Customer's payment of the Fees and the other terms and conditions of this Agreement (including those set forth in the Order Form), Otti hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to (i) access and use the Platform during the Term solely for Customer's internal business purposes, and only in accordance with any documentation Otti provides regarding the Platform. From time to time, Otti may provide upgrades, patches, enhancements, or fixes ("Updates") for the Platform to its customers generally without additional charge, and such Updates will become part of the Platform and subject to this Agreement; provided that Otti shall have no obligation under this Agreement or otherwise to provide any such Updates.
Access to the Beta Offerings. Otti may, in our sole discretion, include certain test or beta features or products in the Platform ("Beta Offerings"), as designated from time to time, which shall be considered part of the Platform. Customer's use of any Beta Offering is completely voluntary. Otti will provide Customer with prior notification if any Beta Offerings are to be accessed on a closed beta or confidential basis. For any such confidential Beta Offerings, Customer agrees to not disclose, divulge, display, or otherwise make available any of the Beta Offerings without Otti's prior written consent.
Ownership. As between the parties, Otti owns: (i) the Platform (including Updates), the Otti name, the Otti logo, the domain name where the Platform is hosted and all subdomains and content thereon, the product and service names associated with the Platform, and other trademarks and service marks; (ii) audio and visual information, documents, software and other works of authorship provided by Otti to Customer under this Agreement; and (iii) other technology, including graphical user interfaces, artificial intelligence and machine learning models, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information used by Otti to provide the Platform under this Agreement, including in each case all modifications, enhancements, improvements and derivative works thereof and thereto (collectively, "Otti Technology"). Any software which is distributed or otherwise provided to Customer hereunder by Otti (including without limitation any software identified on an Order Form) shall be deemed a part of the "Otti Technology". Other than as expressly set forth herein, no license or other rights in or to the Otti Technology or related Intellectual Property Rights are granted to Customer or Authorized Users, and all such licenses and rights are hereby expressly reserved to Otti.
Feedback. Customer hereby grants Otti a royalty-free, worldwide, irrevocable, perpetual, sublicenseable, transferable license to use or incorporate into the Platform and other Otti products and services and suggestions, ideas, enhancement requests, feedback, recommendations or other information ("Feedback") provided by Customer or its Authorized Users related to the operation of the Platform. For the avoidance of doubt, Otti shall not be obliged to implement any such Feedback.

3. Customer Data; Privacy

Ownership. Customer shall own all rights, title and interest in and to all of Customer Data and shall at all times have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and for ensuring that its use does not infringe the rights of any third parties.
License. Customer hereby grants to Otti, on and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable license to use Customer Data for the purpose of providing the Platform under this Agreement (together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent necessarily required for the performance of Otti's obligations), for any requirements ancillary to the provision of the Platform and, on an aggregated and anonymized basis, for the maintenance, improvement and enhancement of the Platform, including by training Otti's artificial intelligence algorithms and models. Customer warrants to Otti that the use of Customer Data in accordance with this Agreement will not: (a) breach any laws, statutes or regulations; (b) infringe the Intellectual Property Rights or other legal rights of any person; or (c) give rise to any cause of action against Otti, in each case in any jurisdiction and under any applicable law or regulation.
Data Privacy. Customer's access to and use of the Platform or certain features of the Platform may require Customer or Authorized Users to provide information may include data that relates to an identified or identifiable individual ("Personal Information"). The types of Personal Information that Otti may collect to provide the Platform is set forth in Otti's Privacy Policy found at www.otti.com/privacy, which may be updated from time to time. Customer shall, in relation to any data, including Personal Information shared with Otti or uploaded to the Platform for Otti to use as envisaged under this Agreement, provide all notices, obtain all consents and take all other steps that may be required by applicable laws.
Data Protection. Otti will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Personal Information uploaded to the Platform.

4. Customer Obligations

Access Credentials. Customer will not share with any third party (other than Authorized Users) access credentials that could be used to access the Platform without Otti's prior written consent and will ensure that such access credentials are only used by the Authorized Users. If such individuals(s) cease to act in an authorized capacity on behalf of Customer for any reason then Customer will immediately remove the access credentials from such individual(s). Customer will be responsible for any third party using Customer's access credentials.
Data Restrictions. Customer shall not (and shall ensure that its Authorized Users do not) upload, store, distribute or transmit any material, information or data (including any Customer Data) to, on, or through the Platform that (i) contains worms, trojan horses, viruses or the like, (ii) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (iii) facilitates illegal activity; (iv) promotes unlawful violence, discrimination based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activities; or (v) that would violate any Intellectual Property Rights of a third party.
Technology Restrictions: Customer shall not (and shall ensure that its Authorized Users do not) (i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Platform or the Otti Technology; (ii) license, sublicence, resell, rent, lease, distribute, transfer or assign the Platform or the Otti Technology; (iii) access or use all or any part of the Platform or Otti Technology in order to build a product or service which replicates, competes with or is substantially similar to the Platform; (iv) attempt to undertake any security testing of the Platform or Otti Technology without the prior written consent of Otti; (v) use the Platform or Otti Technology to provide services to third parties; (vi) assist third parties (other than Authorized Users) in obtaining access to the Platform or Otti Technology.
Responsibilities. Customer shall: (i) provide Otti with all necessary co-operation in relation to this Agreement and access to such information as may be required by Otti in order to provide the Platform; (ii) maintain adequate internet connections and technical capabilities to access and use the Platform; and (iii) comply with all applicable laws and regulations with respect to its activities under this Agreement. Customer acknowledges that as between the parties, it is solely responsible for ensuring that its firewalls, security and privacy systems and settings, and other plug-ins or applications do not interfere with or restrict Customer's, or its Authorized Users', access and use of the Platform or Otti Technology.

5. Otti Warranties; Disclaimer

Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Otti represents and warrants that it shall (i) perform its obligations under this Agreement in compliance with all applicable laws, and, except with respect to the Beta Offerings, (ii) use commercially reasonable efforts to ensure the Platform is available on a 24/7 basis, but Otti makes no representation or warranty that the operation or availability of the Platform will be uninterrupted or error-free.
Maintenance. Customer acknowledges that Otti may from time to time carry out routine and emergency maintenance of the Platform. Customer may be unable to access the Platform during any period in which routine or emergency maintenance is being carried out, though Otti will use its commercially reasonable efforts to keep disruption to, and unavailability of, the Platform to a minimum.
General Disclaimer. Except as expressly provided in this Agreement, the Platform and Otti Technology are provided “as is” and to the extent permitted by law, Otti disclaims all other conditions, warranties, representations, undertakings or other terms which might have effect between the parties with respect to the Platform and Otti Technology, or be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Otti expressly disclaims any representation or warranty that the operation or availability of the Platform will be uninterrupted or error-free.
Beta Offerings Disclaimers. Customer acknowledges that Customer’s use of the Beta Offerings is completely voluntary. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. Customer acknowledges and agrees that all use of the Beta Offerings is at Customer’s sole risk. Customer acknowledges and agrees that all use of any Beta Offering is at Customer’s sole risk.
Third-Party Service Disclaimers. Otti is not a party to any agreement with respect to Customer’s use or engagement with any Third-Party Service. Accordingly, Customer acknowledges and agrees that it bears full responsibility for use of any Third-Party Service in accordance with (i) the terms and conditions of the applicable Third-Party Service provider, and (ii) any other legal or regulatory requirements. Otti will not be responsible or liable to Customer or Third-Party Service (as applicable) for any loss, damage, expense, liability, or costs Customer or Third-Party Service (as applicable) suffers or incurs arising from Customer’s use of any Third-Party Service or failure of any Third-Party Service to operate correctly.

6. Fees

General. Customer shall pay to Otti all fees set forth in the Order Form (the "Fees"). Any Fees paid shall be non-refundable in any circumstances including upon early termination of this Agreement. Customer shall provide accurate, current and complete information on Customer's billing address and billing contacts, including email address and phone number, and will promptly notify Otti if this information changes.
Taxes. All sums due to Otti under or in relation to this Agreement are exclusive of any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, fees and surcharges that are legally or by custom borne by a purchaser of goods or services ("Sales Tax"), which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by Customer in full at the same time as payment is due under the relevant invoice. If Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to Otti pursuant to this Agreement and Otti is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to Otti will be increased by the amount necessary to yield to Otti an amount equal to the sum it would have received had no withholdings or deductions been made.
Remedies. If Customer fails to make any payment in accordance with this Agreement, then Otti shall (without prejudice to its other rights and remedies) be entitled to (i) charge interest on the overdue amount at the lesser of the maximum rate allowed by law or a rate of 3%, compounded on a monthly basis, from the date on which such amount fell due until payment, whether before or after judgment; and/or (ii) suspend Customer's and the Authorized Users' access to and use of the Platform until payment is made by Customer in accordance with this Agreement.

Term; Termination; Suspension

Term. Subject to termination as described herein, the term of this Agreement will commence on the Effective Date and will continue for the Term set forth in the Order Form.
Termination for Cause. Either party may terminate this Agreement immediately in the event the other party has materially breached the Agreement and failed to cure such breach within thirty (30) days after notice by the non-breaching party is given. Otti may also terminate this Agreement, effective immediately upon written notice, if Customer (i) admits in writing its inability to pay its debts generally as they become due; (ii) makes a general assignment for the benefit of its creditors; (iii) institutes proceedings, or has proceedings instituted against it seeking relief or reorganization under any laws relating to bankruptcy or insolvency; or (iv) has a court of competent jurisdiction appoint a receiver, liquidator, or trustee over all or substantially all of such its property or provide for the liquidation of its property or business affairs.
Effect of Termination; Survival. Upon termination of this Agreement for any reason:
1. all licenses granted under this Agreement shall immediately terminate and Customer and the Authorized Users shall immediately cease all use of the Platform. For the avoidance of doubt, any licenses granted under this Agreement which are stated to be granted on a perpetual and irrevocable basis shall survive the termination of this Agreement for any reason and shall continue in full force and effect;
2. Customer shall immediately pay all sums and amounts payable to Otti under the terms of this Agreement;
3. unless the parties agree otherwise, each party shall return or destroy, and (in each case) make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party, including the other party's Confidential Information (except as set forth in Section 8.b below);
4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced;
5. Sections 2.c, 2.d, 5.c, 5.d, 5.e, 7.c, 8, 9, 10, and 11 and any other provisions which are necessary for the interpretation or enforcement of this Agreement shall continue in force notwithstanding termination.
Suspension. Otti may suspend Customer's, and its Authorized Users', right to access the Platform or use any portion or all of the Platform immediately upon notice to Customer if it determines acting reasonably that (i) Customer's (or an Authorized User's) use of or access to the Platform (a) poses a security risk to Otti, the Platform or any third party; (b) may adversely impact availability or performance of the Platform; (c) may subject Otti or any third party to any liability; or (d) may be fraudulent; or (ii) such suspension is required by applicable law or regulation; or (iii) that Customer, or any Authorized User, is in breach of this Agreement or any other agreement by which software being used on or in conjunction with the Platform is licensed.

8. Confidentiality

Definition. "Confidential Information" means any and all information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after this Agreement by or on behalf of one party ("Discloser") to the other party ("Recipient") in writing, orally, through visual means, or by the Recipient's evaluation, observation, analysis, inspection or other study of such information, data or knowledge, which is now or at any time after the date of this Agreement, owned or controlled by the Discloser. Confidential Information shall include trade secrets, discoveries, knowhow, designs, specifications, drawings, present or future products or services (including the provision of the Platform), inventions, prototypes, algorithms, software of any kind or nature, and other technical and business information and any other information which, by its nature, would reasonably be considered to be of a confidential nature either intrinsically or due to the context and circumstances in which it was disclosed, including, for the avoidance of doubt, information concerning the parties' customers, which is of a confidential nature, and the terms of this Agreement. For clarity, Confidential Information includes the Beta Offerings. Confidential Information does not include information that (a) is or becomes publicly available through no fault of Recipient, (b) was known to Recipient, free of any confidentiality obligations, before receipt, (c) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser, or (d) is independently developed by Recipient without the use of Discloser's Confidential Information.
Obligations. Recipient will not reproduce, use, disseminate, or disclose Confidential Information to any person or entity, except to its employees, affiliates, consultants, or advisors (collectively, "Representatives"), who have a reasonable need to know the Confidential Information in connection with performance of this Agreement and are bound by obligations at least as restrictive as this Agreement before having access to Confidential Information. Recipient is responsible for the acts and omissions of its Representatives under this Agreement. Recipient will not modify, reverse engineer, create other works from, or disassemble any embodiments of the Confidential Information without Discloser's written approval. Recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never less than reasonable care. Recipient will stop the use of and return or destroy all tangible Confidential Information promptly upon request, together with any copies, except as otherwise required by law or pursuant to a bona fide archival or document retention policy. Recipient may disclose Confidential Information: (a) upon Discloser's written approval; and (b) as necessary to respond to a valid order by a court or governmental body, as required by law, or as necessary to establish the rights of either party, provided that Recipient promptly notifies Discloser upon receipt of a disclosure order and requests confidential treatment of any affected Confidential Information. Recipient's shall comply with its obligations with respect to Confidential Information under this Agreement survive for five years after termination of the Agreement, except with respect to trade secrets or source code, which must be kept in confidence in perpetuity. Upon written request of the Discloser or at the termination of this Agreement, Recipient will promptly return to Discloser or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by Recipient) Confidential Information of Discloser, except as otherwise required by law or pursuant to a bona fide archival or document retention policy.
Injunctive Relief. The parties agree that the Recipient's disclosure of Confidential Information, except as provided herein, may result in irreparable injury for which monetary damages may be inadequate. The parties further agree that in the event of such disclosure or threatened disclosure, the Discloser may be entitled to seek an injunction to prevent the breach or threatened breach, in addition to remedies otherwise available to the Discloser at law or in equity.
Usage Data. Otti may collect usage data regarding the manner in which Customer interacts with the Platform ("Usage Data"). Otti owns any Usage Data, which for clarity shall not be considered Customer's Confidential Information. Nothing in this Agreement will be construed as prohibiting Otti from utilizing the Usage Data to optimize and improve the Platform, or otherwise in connection with Otti's business operations.

9. Indemnification

Otti. Otti will defend, indemnify, and hold Customer, its affiliates and their respective officers, directors, members, employees, consultants, agents and suppliers (each a "Customer Indemnitee") harmless for any loss, damage, expense, liability, or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees), resulting from a claim brought against a Customer Indemnitee by a third party to the extent such claim alleges that such Customer Indemnitee's use of the Platform (as authorized in this Agreement) directly violates, infringes or misappropriates any of such third party's Intellectual Property Rights (a "Claim"). Otti will pay all damages (including reasonable attorney fees) finally awarded against Customer by a court of competent jurisdiction (or amounts agreed in a monetary settlement) in any such Claim. Otti will have no liability to Customer for any Claim that arises out of: (1) any unauthorized use, reproduction, or distribution of the Platform, (2) Customer's breach of this Agreement, (3) use of the Platform in combination with any other software, content, data, business process, or equipment not supported in the supplied by Otti, (4) any modification or alteration of the Platform by anyone other than Otti, or (5) Otti's compliance with any materials, designs, specifications or instructions provided by Customer (subsections (1) – (5) collectively, "Customer Acts").
Procedure. Customer shall give Otti prompt notice of any actual or threatened Claim. Customer shall not admit any liability or agree to any settlement or compromise of an Claim without the prior written consent of Otti. Otti shall be entitled to assume exclusive conduct of the Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the Claim and to conduct all discussions and dispute resolution efforts in connection with the Claim). Customer shall, at Otti's request, cost and expense, give Otti all reasonable assistance in connection with the conduct of the Claim.
Remedy. If any such Claim is brought or threatened, or if Otti reasonably believes that the Platform may become the subject of an infringement claim, Otti may, at its sole option: (i) procure for Customer the right to continue to use the Platform; (ii) modify the Platform to make it non-infringing; (iii) replace the affected aspect of the Platform with non-infringing technology having substantially similar capabilities; or (iv) terminate this Agreement and refund Customer any prepaid Fees related to the Platform prorated for the remainder of the Term.
Customer. Customer will indemnify and hold Otti, its affiliates and their respective officers, directors, members, employees, consultants, agents and suppliers (each a "Otti Indemnitee") harmless for any loss, damage, expense, liability, or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees), resulting from a claim brought against Otti by a third party to the extent such claim arises out of any Customer Acts or Customer's use of any Third-Party Service.

10. Limitation of Liability

Limit on Direct Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY'S (OR THEIR AFFILIATES') TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM EXCEED THE TOTAL FEES PAID BY CUSTOMER TO OTTI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE FIRST EVENT WHICH GIVES RISE TO LIABILITY UNDER THIS AGREEMENT.
No Indirect and/or Consequential Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL, LOSS OF USE OF DATA, OR ANY CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
Exceptions to the Limitation of Liability. THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF DAMAGES WILL NOT APPLY TO (A) ANY OBLIGATION OF CUSTOMER TO PAY THE FEES SET FORTH HEREIN, (B) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (C) ANY LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE PARTIES AGREE THAT LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE INTENDED TO SURVIVE IF A PARTY'S REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND THAT THE FEES FOR SOFTWARE AND SERVICES WOULD HAVE BEEN GREATER BY NECESSITY WITHOUT THEM.

11. Miscellaneous

Ambiguities. Each party has participated in the review of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
Assignment. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Otti and any attempt to do so will be null and void. Notwithstanding the foregoing, either party may assign this Agreement in its entirety to an affiliate or to a successor in interest by way of a merger, reorganization, or a sale of all or substantially all the assets of the party. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
Collaboration. Each party acknowledges that the trademarks, logos and service marks ("Marks") of the other party are the property of Otti or Customer, as applicable. Subject to Customer's ability to revoke consent for use at any time, Otti may reference Customer, or Customer's Marks (subject to Customer's applicable brand guidelines), and Customer's use of the Platform in customer and prospect communications and on Otti's website. Otti agrees to stop distributing, publicly referencing, and displaying the materials at any time upon written request from Customer. Customer may not use Otti's Marks in any external communications or materials without Otti's prior written approval.
Compliance with Laws. The parties will comply with all laws, statutes, and regulations applicable to them respectively under this Agreement. Each party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other parties' Representatives in connection with this Agreement. If a party becomes aware of any violation of this Section, it will notify the other through the designated channel.
Contractual Relationship. The parties are entering into this Agreement as independent contracting parties. Neither party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other party. This Agreement will not be construed to create an association, joint venture, principal to agent relationship or partnership between the parties or to impose any partnership liability upon any party.
Force Majeure. Except for the inability to meet financial obligations, neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, computer-related attacks, hacking, internet service provider failures or delays, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government (each a "Force Majeure Event"). The parties agree to use their best efforts to minimize the effects of such failures or delays. For the avoidance of doubt, Customer understands that the Platform may not be provided in countries listed in the Office of Foreign Assets Control sanction list and Customer's access to the Platform may be restricted in such countries. Such prohibitions do not constitute a Force Majeure Event.
Government Users. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations ("FAR"), Customer acknowledges that elements provided herein constitute software and documentation and are provided as "Commercial Items" as defined at 48 C.F.R. 2.101 and are being licensed to U.S. government user as commercial computer software, subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
Integration; Order of Precedence. This Agreement (including the Order Form) constitutes the entire agreement between the parties and supersedes all prior agreements, or communications between the parties regarding the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both parties. The terms of this Agreement will not be amended, modified, or supplemented by, and will control over, any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, or other document or statement issued by Customer. The terms of this Agreement will not be amended, modified, or supplemented by, and will control over, any conflicting or additional terms or conditions of any purchase order or purchase order platform, acknowledgement, confirmation, or other document or statement issued by Customer.
Nonwaiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
Notices. Otti may provide any notice to Customer by sending an email to Customer's email contact, as provided by Customer or as designated in this section. Customer may provide notice to Otti by sending an email to support@otti.com. Notices will be: (a) in writing, (b) in English and (c) treated as received when the email is sent, whether the other party has received the email or not. Customer is responsible for keeping its designated email contact current throughout the Term.
Governing Law. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of Maryland, without reference to its choice of law rules. The courts located in the County of Montgomery, MD have exclusive jurisdiction for all purposes regarding this Agreement.
Signatures. This Agreement may be signed electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document.
Third-party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement.
Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and supersedes any prior communications, representations, understandings and agreements, either oral or written, between the parties with respect to such subject matter.