Terms & Conditions

Poet Master Service Agreement IMPORTANT INFORMATION – READ CAREFULLY  UNLESS YOU (THE “CUSTOMER”) HAVE OBTAINED PERMISSION TOUSE POET’S SERVICES UNDER A SEPARATE, DULY SIGNED AGREEMENT OR WITH POET,ALL POET SERVICES, INCLUDING ANY FREE TRIALS, ARE PROVIDED UNDER THEFOLLOWING TERMS AND CONDITIONS AND ANY SUPPLEMENTAL TERMS REFERENCED BELOW ANDYOUR RIGHT TO USE THE SERVICES IS CONDITIONED UPON YOUR ACCEPTANCE OF THISAGREEMENT (THE “MSA”).  YOUR USE OF THE SERVICES SHALL SIGNIFY YOUR ACCEPTANCEOF THE MSA.   IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS AND YOU DONOT HAVE A SEPARATE SERVICE AGREEMENT AS REFERENCED ABOVE, YOU MAY NOT USE THESERVICES. TERMS AND CONDITIONS If you, the Customer, are entering this Agreementon behalf of a company or other legal entity, you represent that you have theauthority to enter into such acceptance and to bind such entity and itsaffiliated users to the terms of this Agreement, in which casereferences to “you” and “your” in this Agreement shall mean such entity.If you do not have such authority or if you do not agree with the terms ofthis Agreement, do not accept this Agreement and do not use theServices (as defined below). Capitalized terms not otherwise defined elsewhere in thisAgreement shall have the meanings assigned in Section 19 below.   1.    Services.  The term, Services, as used herein shall be thoseservices described in one or more estimates, statements of work, orother writings exchanged between the parties regarding Poet’s various services tobe provided to Customer (each, a “Statement of Work”).  Customeralso acknowledges that any free trial of the Services that may beprovided to Customer by Poet is subject to the applicable terms andconditions of this MSA.  The specific Services set forth in eachStatement of Work shall be referred to herein as the “Deliverables”. EachStatement of Work shall be deemed to have incorporated all of the terms andconditions of this MSA in full, and as may be amended from time to time by Poet. Such amendments shall be posted on their website, goPoet.com/.  If thereis any conflict between the provisions of the MSA and Statement of Work,the provisions of the Statement of Work shall control, except for Sections15-18 of the MSA which shall control over all Statements of Work.     1.    EffectiveDate.    ThisAgreement is effective, and Customer expressly agrees to be bound by its termsupon the earlier of (i) the execution by Customer of the Statement ofWork for the Services therein described or (ii) upon Customer’s Useof the Services (the “Effective Date”).        1.    Grant ofRights and Restrictions.   Subject to the terms hereof and any applicable user/uselimitations, Poet grants Customer a limited, non–transferable,non–exclusive right to access and use the Deliverables setforth in the Statement of Work, subject to any limitations inthe Statement of Work, for Customer’s internal business purposes andonly in accordance with Poet’s User Documentation.  In addition, Poet grantsCustomer a limited,non-sublicensable, non-transferable non-exclusive license duringthe applicable Statement of Work Term, subject to any limitations onthe Statement of Work, to install, copy and use Poet Software (if any isincluded in the Deliverables) in conjunction withthe Deliverables and for Customer’s internal business purposes andonly in accordance with Poet’s User Documentation.  As between theparties, Poet retains sole ownership of all Services andrights therein, including, without limitation, alldocumentation, modifications, improvements, upgrades, derivativeworks, developments, original works and all other IntellectualProperty rights in connection with the Services, including Poet’s name,logos, and trademarks reproduced through the Services, subject toSection 10 below.  Customer shall not (and shall not permit any third partyto), directly or indirectly: (i) reverse engineer, decompile, disassemble, orotherwise attempt to discover the source code, object code, or underlyingstructure, ideas, or algorithms of the Services (except to the extentapplicable laws specifically prohibit such restriction); (ii) modify,translate, or create derivative works based on the Services; (iii) copy, rent,lease, distribute, pledge, assign, or otherwise transfer or encumber rights tothe Services; (iv) use the Services for the benefit of a third party; (v)remove or otherwise alter any proprietary notices or labels from theServices or any portion thereof; (vi) use the Services tobuild an application or product that is competitive with any Poet productor service; (vii) interfere or attempt to interfere with the proper working ofthe Deliverables or any activities conducted on the Services; or(viii) bypass any measures Poet may use to measure or restrictaccess to the Services (or other accounts, computer systems or networksconnected to the Service).  Customer is responsible for all ofCustomer’s activity in connection with the Services, including but not limitedto uploading Customer Data (as defined below) onto the Services, unlessotherwise agreed by the parties in writing.  Upon mutual execution,each Statement of Work shall be incorporated into and form a part ofthe Agreement. Customer (i) shall use the Services in compliance with allapplicable local, state, national and foreign laws, treaties and regulations inconnection with Customer’s use of the Services (including those related todata privacy, international communications, export laws and the transmission oftechnical or personal data laws), and (ii) shall not use the Services in amanner that violates any third party intellectual property, contractual orother proprietary rights. Poet makes no representation that the Servicesare appropriate or available for use outside of the United States. Customerrepresents and that it is not located in, under the control of, or a nationalor resident of any country to which the United States has embargoed the importor export of goods, on the United States Treasury Department’s List ofSpecially Designated Nationals or United States Commerce Department’s Table ofDeny Orders.    1.    PoetAccess to Customer’s Computer Systems.  If the Services to be provided hereunder include Data EntryServices, Customer will provide all necessary passwords and security access tothe necessary programs in the Customer’s Computer System (“Access Codes”) toenable Poet to provide such services. Poet will have no liability for anylapses in the Data Entry Services due to Poet’s inability to access theCustomer’s Computer System. Customer shall be responsible for obtaining andmaintaining the Customer’s Computer System and paying all third-party accesscharges and fees incurred to maintain and operate the Customer’s ComputerSystem. Poet will provide reasonable safeguards for the security and/or use ofthe Access Codes, and shall only use such Access Codes for the limited purposeof providing the Data Entry Services to the Customer and for no otherpurpose.  In the event that incorrect data is entered by Poet or itsagents providing the Data Entry Services, Customer shall notify Poet of suchincorrect data in writing and Poet shall, at its sole expense, timely correctthe data entries in the Customer’s Computer System.  This shall be theCustomer’s sole remedy for such incorrect data entry. Customer shall beresponsible for implementing, maintaining, and updating all necessary andproper procedures and software for safeguarding the Customer’s Computer Systemagainst all Viruses.  Customer shall abide by all local and internationalLaws and regulations applicable to its use of the Services, use the Servicesonly for legal purposes, and comply with all regulations, policies andprocedures of networks connected to the Customer Computer System.    1.    Implementation.  Upon payment of any applicable fees set forth ineach Statement of Work, Poet agrees to use reasonable commercialefforts to provide standard implementation assistance forthe Deliverables only if and to the extent such assistance is setforth on such Statement of Work (“Implementation Assistance”). If Poet provides Implementation Assistance in excess of anyagreed-upon hours estimate, or if Poet otherwise provides additionalservices beyond those agreed in a Statement of Work, Customer willpay Poet at its then-current hourly rates for consultation.    1.    SupportServices. During the term ofthe Statement of Work(s), Poet will provide to Customer theapplicable Support Services posted on Poet’s website and as may be amendedfrom time to time. Support Services do not include: (a) physical installation or removal of the Poet Software and any User Documentation; (b) visits to Customer’s site; or (c) any professional services associated with the Services,including, without limitation, any custom development, data modeling, codereview and application architecture/infrastructure design.  Poet’s support obligations do not extend to any ongoingtest, training, or any other non-production instances ofthe Deliverables provided to Customer pertaining to issues orerrors caused by:   1.    Third partyhardware, third party SaaSor third party software;    1.    Use of theServices in violation of the terms of the Agreement; or Use ofthe Services other than in accordance with any User Documentation orthe express instructions of Poet.    1.    ServiceUpdates. From time to time, Poet mayprovide upgrades, patches, enhancements, or fixes for the Service to itscustomers generally without additional charge (“Updates”), and such Updateswill become part of the Deliverables and subject to this Agreement;provided that Poet shall have no obligation under this Agreement orotherwise to provide any such Updates. Customer understands that Poet maycease supporting old versions or releases of the Deliverables at anytime in its sole discretion; provided that Poet shall usecommercially reasonable efforts to give Customer sixty (60) days prior noticeof any major changes.   1.    Ownership;Restrictions; Feedback.  Asbetween the parties, Poet retains all right, title, and interest inand to the Services, and all software, products, works, and other intellectualproperty and moral rights related thereto or created, used, or providedby Poet for the purposes of this Agreement, including any copies andderivative works of the foregoing.  Customer agrees to maintainthe copyright notice and any other notices that appear onthe Deliverables and the Software.  No rights or licensesare granted except as expressly and unambiguously set forth in this Agreement.Customer, at its option may from time to time provide suggestions, comments orother feedback to Poet with respect to the Service(“Feedback”).  Feedback, even if designated as confidential by Customer,shall not create any confidentiality obligation for Poet notwithstandinganything else.  Customer shall, and hereby does, grant to Poet anonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable,royalty-free, fully paid up license to use and exploit the Feedback for anypurpose.  Nothing in this Agreement will impair Poet’s right todevelop, acquire, license, market, promote or distribute products, software ortechnologies that perform the same or similar functions as, or otherwisecompete with any products, software or technologies that Customer may develop,produce, market, or distribute.   1.    Fees;Payment.  Customer shall pay Poet feesfor the Service as set forth in each Statement ofWork (“Fees”).  Unless otherwise specified in a Statement ofWork, all Fees shall be invoiced annually in advance and all invoices issuedunder this Agreement are payable in U.S. Dollars within thirty (30) daysfrom date of invoice. Past due invoices are subject to interest on anyoutstanding balance of the lesser of 1.5% per month or the maximum amountpermitted by law.  Customer shall be responsible for all taxes associatedwith Service (excluding taxes based on Poet’s net income).  AllFees paid are non-refundable and are not subject to set-off. If Customerexceeds any usage set forth on an Statement of Work, then (i) Poet shallinvoice Customer for such additional usage (which Poet may do at anytime and which shall be payable within thirty (30) days from date of invoice)at Poet’s then-current standard rates for such usage), in eachcase on a pro-rata basis from the first date of such excess usage through theend of the then current Statement of Work Term or from the datethe last invoice was issued for excess usage (as applicable), and (ii) if such Statementof Work renews (in accordance with Section 12, such renewal shallinclude the additional fees for such excess usage.  The Service willremain active and available as long as Customer does not haveany invoice from Poet that is more than 60 days past due unlessthis Agreement is terminated earlier in accordance with Section12 hereof.   1.    ThirdParty Services.  Customeracknowledges and agrees that the Service operates on or with or usingapplication programming interfaces (APIs) and/or other services operated orprovided by third parties (“Third Party Services”). Poet is notresponsible for the operation of any Third-Party Services nor theavailability or operation of the Services to the extent such availability andoperation is dependent upon Third Party Services.  Customer is solelyresponsible for procuring any and all rights necessary for it to access ThirdParty Services and for complying with any applicable terms or conditionsthereof.  Poet does not make any representations or warrantieswith respect to Third Party Services orany third-party providers.  Any exchange of data or otherinteraction between Customer and a third-party provider is solelybetween Customer and such third-party provider and is governed bysuch third party’s terms and conditions.   1.    CustomerData.  For purposes of thisAgreement, “Customer Data” shall mean any data, information or other materialprovided, uploaded, or submitted by Customer to the Services in thecourse of using the Deliverables.  Customer Data includes withoutlimitation, any invoices or other similar records which may be submitted by theCustomer to Poet for processing as part of the Data ProcessingServices. Customer shall retain all right, title and interest in and tothe Customer Data, including all intellectual property rightstherein.  Customer acknowledges and agrees that the Servicesare not intended to provide a long-term storage mechanismand are wholly separate from the storage and archival of CustomerData.  Customer is responsible for selecting, licensing, securing, administering,and making available the mechanism(s) that store and archive CustomerData.  Customer, not Poet, shall have sole responsibility forthe accuracy, quality, integrity, legality, reliability, appropriateness, andintellectual property ownership or right to use of all CustomerData.  Poet shall use commercially reasonable efforts tomaintain the security and integrity of the Services and the CustomerData.  Poet is not responsible to Customer for unauthorizedaccess to Customer Data or the unauthorized use ofthe Services unless such access is due to Poet’s grossnegligence or willful misconduct.  Customer is responsible for the use ofthe Services by any person to whom Customer has given access to theServices, even if Customer did not authorize such use. The Partiesacknowledge and agree that Customer will be and remain the controller of theCustomer Data for purposes of Privacy Laws, and nothing in this Agreement orany Statement of Work will restrict or limit in any way Customer’s rights orobligations as owner and/or controller of the Customer Data for suchpurposes.   1.    Confidentiality.   13.1. During the term of thisAgreement, each party may disclose to the other party certain ConfidentialInformation (defined in Section 13.2).  The receiving party shallhold the disclosing party’s Confidential Information in confidence and shalluse its best efforts to protect it.  The receiving party shall notdisclose the disclosing party’s Confidential Information to any person otherthan employees and independent contractors of the receiving party who need toknow such Confidential Information in order to perform services for thereceiving party and who are bound by a written confidentiality agreement withthe receiving party that is no less protective of such Confidential Informationas this Agreement.  Upon request of the disclosing party, the receiving partywill provide the disclosing party with reasonable evidence of such writtenconfidentiality agreement.  The receiving party shall use suchConfidential Information for the sole purpose of performing its obligationshereunder.  Upon termination of this Agreement, the receiving party shalleither return to the disclosing party all of the disclosing party’sConfidential Information in its possession (including all copies) or shall, atthe disclosing party’s direction, destroy the disclosing party’s ConfidentialInformation (including all copies) and an officer of the receiving party shallcertify its destruction to the disclosing party.  13.2. For the purposes of this Agreement,“Confidential Information” means any information or know-how (in oral, written,digital or other form), including, without limitation, information relating toresearch, product plans, products, services, clients, markets, software,developments, inventions, processes, methodologies, designs, drawings,engineering, hardware configuration, marketing or finances, provided by oneparty to the other party, obtained by one party from the other party, orprepared by one party upon review of the other party’s information orknow-how.  The Training Materials shall be Confidential Information of Poet. The receiving party shall require any of its employees and independentcontractors who receive Confidential Information of the disclosing party tocomply with the provisions of this Section 6 and shall be responsible for anyuse or disclosure of the Confidential Information of the disclosing party byany such persons as though such use or disclosure were made by the receivingparty. 13.3.Notwithstanding Section 11.2, the term “Confidential Information” shallnot include any information which (a) is publicly known at the time ofdisclosure or enters the public domain following disclosure through no fault ofthe receiving party, (b) the receiving party can demonstrate was already in itspossession prior to disclosure hereunder, or (c) is independently developed bythe receiving party without reference to or use of the disclosing party’sConfidential Information. 13.4. Thereceiving party may disclose the disclosing party’s Confidential Informationupon the order of any competent court or government agency, provided that priorto such disclosure the receiving party shall inform the disclosing party ofsuch order and provide the disclosing party with reasonable assistance toprevent or limit such disclosure. 13.5.  Eachparty agrees that its obligations under this Section 11 are necessaryand reasonable in order to protect the disclosing party and its business, andeach party expressly agrees that monetary damages would be inadequate tocompensate the disclosing party for any breach by the receiving party of suchobligations. Accordingly, each party agrees and acknowledges that any suchbreach or threatened breach will cause irreparable injury to the disclosingparty and that, in addition to any other remedies that may be available at law,in equity or otherwise, the disclosing party shall be entitled to obtaininjunctive relief against the continued breach or threatened breach of thereceiving party’s obligations under this Section 11, without the necessityof proving actual damages or posting a bond.        1.    Term;Termination   14.1 Term of Agreement.  This Agreement will commence on the EffectiveDate and will remain in effect for as long as there is a Statement ofWork in effect (“Term”), unless otherwise terminated as providedfor in Section 11.3 (Termination for Cause) below.   14.2 Term of Statement of Work and Renewal.  Each Statement of Work placed under thisAgreement will be in effect for a period of one (1) year from the service startdate of the Statement of Work unless otherwise agreed inthe Statement of Work.  Thereafter, unless the Agreement isterminated as provided herein, the Statement of Work(s) will automaticallyrenew for the same period of time as the term of theprior Statement of Work, unless either Party notifies the other Party inwriting of its intent not to renew the applicable Statement of Work(s) atleast thirty (30) days’ prior to the end of the then-current term ofsuch Statement of Work(s).    14.3 Termination for Cause.  Either Party may terminate this Agreement for cause:(a) upon thirty (30) days’ written notice to the other Party of a materialbreach of this Agreement if such breach remains uncured after the expiration ofsuch period; or (b) if the other Party becomes insolvent, admits in writing itsinability to pay its debts as they mature, makes an assignment for the benefitof creditors, becomes subject to control of a trustee, receiver or similarauthority, or becomes subject to any bankruptcy or insolvencyproceeding.      1.    Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and holdharmless the other party, its affiliates and each of its and its affiliates’employees, contractors, directors, suppliers and representatives (collectively,the “Indemnitee”) from all liabilities, claims, and expenses paid or payable toan unaffiliated third party (including reasonable attorneys’ fees) (“Losses”),that arise from or relate to any claim that (i) the Customer Data or Customer’suse of the Services (in the case of Customer as Indemnitor), or (ii)the Deliverables (in the case of Poet as Indemnitor),infringes, violates, or misappropriates any third party intellectual propertyor proprietary right.  Each Indemnitor’s indemnification obligationshereunder shall be conditioned upon the Indemnitee providing the Indemnitorwith: (i) prompt written notice of any claim (provided that a failure toprovide such notice shall only relieve the Indemnitor of its indemnityobligations if the Indemnitor is materially prejudiced by such failure); (ii)the option to assume sole control over the defense and settlement of any claim(provided that the Indemnitee may participate in such defense and settlement atits own expense); and (iii) reasonable information and assistance in connectionwith such defense and settlement (at the Indemnitor’s expense).  Theforegoing obligations of Poet do not apply with respect tothe Deliverables or any information, technology, materials or data(or any portions or components of the foregoing) to the extent (i) not createdor provided by Poet (including without limitation any Customer Data),(ii) made in whole or in part in accordance to Customer specifications, (iii)modified after delivery by Customer, (iv) combined with other products,processes or materials not provided by Poet (where the alleged Lossesarise from or relate to such combination), (v) where Customer continuesallegedly infringing activity after being notified thereof or after beinginformed of modifications that would have avoided the alleged infringement, or(vi) Customer’s use of the Service is not strictly in accordanceherewith.  Furthermore, Customer agrees to defend, indemnify, and hold Poetand its affiliates and their employees, contractors, directors, suppliers andrepresentatives harmless from any claim or other liability arising fromCustomer’s clients and/or customers who may be the recipients of the Servicesprovided by Poet hereunder.    1.    WarrantyDisclaimer Poet warrants that the Deliverables willperform in material conformance with its official published documentation;Customer’s sole remedy, and Poet’s sole liability, in the event of abreach of the foregoing warranty shall be for Poet to provide supportto Customer in accordance with Section 4.  EXCEPT FOR THE FOREGOINGWARRANTY, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUTWARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OFPERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLYDISCLAIMED. CUSTOMER AGREES TO BACKUP DATA AND TAKE OTHER APPROPRIATEMEASURES TO PROTECT ITS PROGRAMS AND DATA. ANY CUSTOMER DATA STORED OR ACCESSEDTHROUGH THE SERVICE IS DONE SO AT CUSTOMER’S OWN DISCRETION AND RISK, ANDCUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OF DATA THAT RESULTS FROM THEUSE OF THE SERVICES.     1.    Limitationof Liability EXCEPT FOR (A) THE PARTIES’ INDEMNIFICATION OBLIGATIONS,(B) CUSTOMER’S BREACH OF CONFIDENTIALITY OR BREACH OF OBLIGATIONSIN SECTION 4 OF THIS AGREEMENT, AND (C) CUSTOMER’S GROSSNEGLIGENCE, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES,AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT,TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITHRESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATALOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL,INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KINDWHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING) OR (II) FOR ANYDIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BYCUSTOMER TO POET HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THEEVENT GIVING RISE TO A CLAIM HEREUNDER.   1.    InjunctiveRelief and Waiver of Trial by Jury.    The Parties agree that money damages would not be asufficient remedy for any breach of this Agreement related to the protection ofthe Party’s respective Intellectual Property, and that each Party shall beentitled to injunctive relief as remedies for any such breach or threatenedbreach and each Party further agrees to waive and hereby waives any requirementfor the security or the posting of any bond in connection with suchremedies.  Such remedies shall not be considered to be the exclusiveremedies for any such breach or threatened breach, but shall be in addition toall other remedies available at law or equity to each Party.  EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BYJURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THETRANSACTIONS CONTEMPLATED HEREBY. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT THETRANSACTIONS REPRESENTED BY THIS AGREEMENT ARE COMMERCIAL TRANSACTIONS ANDHEREBY VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHTS TO NOTICE OF AND HEARING ONPREJUDGMENT REMEDIES UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES OROTHER STATUTES AFFECTING PREJUDGMENT REMEDIES.   1.    Miscellaneous This Agreement represents the entire agreement betweenCustomer and Poet with respect to the subject matter hereofand supersedes all prior or contemporaneous communications and proposals(whether oral, written or electronic) between Customer and Poet withrespect thereto. The Agreement shall be governed by and construed in accordancewith the laws of the State of Connecticut, excluding its conflicts of lawrules, and the parties’ consent to exclusive jurisdiction and venue in the stateand federal courts having jurisdiction over Hartford County,Connecticut.  All notices under this Agreement shall be in writingand shall be deemed to have been duly given when received, if personallydelivered or sent by certified or registered mail, return receipt requested;when receipt is electronically confirmed, if transmitted by facsimile ore-mail; or the day after it is sent, if sent for next day deliveryby recognized overnight delivery service.  Notices must be sent tothe contacts for each party set forth on the Statement of Work. Either party may update its address set forth above by giving notice inaccordance with this section. Except as otherwise provided herein, nomodification or amendment of any provision of this Agreement shall be effectiveunless agreed by both parties in writing, and no waiver of any provision ofthis Agreement shall be effective unless in writing and signed by the waivingparty. Notwithstanding the forgoing, Poet may update the terms andconditions of this Agreement upon posting such updates on Poet’s website.  Exceptfor payment obligations, neither party shall be liable for any failure toperform its obligations hereunder where such failure results from any causebeyond such party’s reasonable control, including, without limitation, theelements; fire; flood; severe weather; earthquake; vandalism; accidents;sabotage; power failure; denial of service attacks or similar attacks; Internetfailure; acts of God and the public enemy; acts of war; acts of terrorism; pandemic; riots;civil or public disturbances; strikes; lock-outs or labor disruptions; anylaws, orders, rules, regulations, acts or restraints of any government orgovernmental body or authority, civil or military, including the orders andjudgments of courts. Neither party may assign any of its rights or obligationshereunder without the other party’s consent; provided that (i) either party mayassign all of its rights and obligations hereunder without such consent to asuccessor-in-interest in connection with a sale of substantially all of suchparty’s business relating to this Agreement (provided further that Customer’srights and obligations may not be assigned to a competitor of Poet), and(ii) Poet may utilize subcontractors in the performance of its obligationshereunder.  No agency, partnership, joint venture, or employmentrelationship is created as a result of this Agreement and neither party has anyauthority of any kind to bind the other in any respect. Nothing in thisAgreement, express or implied, is intended to confer rights, benefits,remedies, obligations or liabilities on any person (including, withoutlimitation, any employees or affiliates of the parties) other than the partiesor their respective successors or permitted assigns. There areno third party beneficiaries to this contract including withoutlimitation the Customer’s clients and/or customers who may be the recipients ofthe Services. In any action or proceeding to enforce rights under thisAgreement, the prevailing party shall be entitled to recover costs andattorneys’ fees. If any provision of this Agreement is held to be unenforceablefor any reason, such provision shall be reformed only to the extent necessaryto make it enforceable.   The failure of either party to act with respectto a breach of this Agreement by the other party shall not constitute a waiverand shall not limit such party’s rights with respect to such breach or anysubsequent breaches.   1.    Definitions: “Agreement” means this Master Service Agreementtogether with all Statement of Work(s) and any exhibitsthereto which are entered between Poet andCustomer.    “API” means the application-programming interface used byCustomer to access certain functionality as provided by Poet. “Poet Cloud Services” means the cloud-basedprocess-as-a-service and/or robotic process automation application provided by Poet(including any Poet Software) and subscribed to under the Statement ofWork. “Poet Software” or “Software” means optional softwareprovided by Poet for installation on a User’s device or accessed by Users fromthe Customer’s or User’s software, hardware or other device(s) and that allowsa User to use certain functionality in connection with features ofthe Deliverables.     “Poet Consulting Services” means those consulting servicesprovided by Poet to Customer on an individual basis. “Customer’s Computer System” means the Customer’s networkof computers, servers and other hardware and the software applicationsoperating on such computers that house Customer’s business and accountinginformation, records and processing information.  “Intellectual Property” shall means anyinventions, technological innovations, discoveries, designs, formulas,know-how, processes, business methods, patents, trademarks, service marks,copyrights, computer software, ideas, creations, writings, lectures,illustrations, photographs, motion pictures, scientific and mathematicalmodels, improvements to all such property, and all recorded material defining,describing, or illustrating all such property, whether in hard copy orelectronic form.  “Services” means Poet Cloud Services, Poet Softwareand/or Poet Consulting Services and any additional custom services or newservices as may be offered by Poet from time to time. “Privacy Laws” means all applicable laws relating to dataprivacy, transborder data flow and data  “Use of the Services” shall mean the actual access toor use of the Services by the Customer or the provision of the means ofsuch access or use to the Customer by Poet.  “User(s)” means, collectively,any administrator, or user.  “User Documentation” means Poet’s then current publisheddocumentation specifying the functionality of the Deliverables thatis made generally available by Poet to its customers or its users.  “Viruses” means any computer infection, viruses, worms,Trojan horses, and other code that manifest contaminating or destructiveproperties.