Terms & Conditions

1. Definitions

     1.1. “Agreement” shall mean and refer to this Customer Terms and Conditions

     1.2. “Sapper” shall mean and refer to Sapper Software, Inc. the legal entity providing the Services.

     1.3. “Application” An Application is a business service, technology service, data store, cloud/SaaS application, on-prem or proprietary application.For example,Workday HCM, SAP Hana, MongoDB database, FTP/SFTP server, Webhook etc.

     1.4. “Application Endpoint” An Application Endpoint is a specific instance of an Application. For example, if a customer has 3 Salesforce instances which need to be connected via REST API, then there is 1 Salesforce Application and 3 Application Endpoints.

     1.5. “Automation (or Workflow)” An Automation is composed of one or more Tasks that are automatically carried out to automate a specific function. For example,a Lead Automation can automate the process where a Lead created in Marketo automatically creates a Lead in Salesforce and sends of a Message in Slack to appropriate channel/person.

     1.6. “Task” A Task is an atomic unit of functionality within an Automation.Tasks can be of various types, such as Trigger Tasks, Helper Tasks, Application Tasks.Examples of Trigger Tasks include Scheduled Triggers and Webhook Triggers. Helper Tasks include functionality like transformation, mapping, file format conversion,etc. Application Tasks connect to Application Endpoints. For example, connecting to Salesforce, Workday, etc. A Task connects to an Application via Connection.

     1.7. “Connection” A Connection is the unit of connectivity that enables an Application Task in a workflow to connect to an Application endpoint. For example, when a Task connects to a specific Application Endpoint like Salesforce (via information like Salesforce URL, Authentication Tokens, API metadata) it establishes a Connection to Salesforce. Each such unit of connectivity established between an Application Task and an Application Endpoint is a separate Connection. Hence,the number of Connections in a workflow equals the number of Application Tasks in a workflow.

     1.8. “Credentials” shall mean and refer to a user’s authentication information typically a password, a token, or a certificate

     1.9. “Customer” shall mean and refer to the legal entity identified on an Order Form by the Reseller.

     1.10. “Customer Terms” shall mean and refer to the Customer Terms and Conditions applicable to the Subscription Service and attached to the Order Form. Customer Terms may change from time to time without notice to Customer.

     1.11. “Intellectual Property Rights” means and refers to any and all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.

     1.12. “Party” shall mean and refer to Sapper and/or Reseller, as the context indicates, and “Parties” means both Sapper and the Reseller

     1.13. “Professional Services” shall mean and refer to the services (including but not limited to, support, implementation, configuration, customization and/or training) performed by Sapper for the Reseller or Customer in accordance with this Agreement and the applicable Order Form(s).

     1.14. “Order Form” shall mean and refer to the written and mutually executed document, governed by the terms and conditions of this Agreement, describing the Subscription Service and Customer’s entitlement to the Subscription Service and/or the Professional Services to be performed by Sapper in order to support and enable Subscription Service for Customer.

     1.15. “Subscription Service” shall mean and refer to Sapper’s automation-based software tools enabling the Services identified on the Order Form.

     1.16. “Services” shall mean and refer to the Subscription Service and/or the Professional Services provided by Sapper.

2. Terms of Service.

     2.1. License. Sapper hereby grants Customer a non-exclusive, non-transferable, worldwide right and license to use the Subscription Service for Customer’s internal business purposes only, subject to the terms of this Agreement and the applicable Order Form(s).

     2.2. License Restrictions. Customer acknowledges that the Subscription Service and its structure, organization, and source code, all together, and separately,constitute valuable trade secrets of Sapper. Accordingly, Customer agrees not to (and not to permit any third party to): (a) modify, adapt, translate, or create derivative works from the Subscription Service; (b) merge the Subscription Service with other software; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Subscription Service to any third party; (d) disclose the results of any benchmark testing, technical results or other performance data relating to the Subscription Service without Sapper’s prior written consent; or (d) reverse engineer, decompile, and or disassemble Subscription Service. Customer must not remove, alter, or obscure in any way at all proprietary marks, trademarks (including common law trademarks), service marks, or other identifying marks of Sapper on or within the Subscription Service or any output generated from or through the Subscription Service. The Subscription Service and all worldwide Intellectual Property Rights therein, are the exclusive property of Sapper. All rights not expressly granted to Customer in this Agreement are reserved exclusively by and to Sapper.

     2.3. Customer Professional Support Service. As part of the Subscription Service, Sapper grants Customer with Base Level Support, as identified in the Support Policies, https://sapper.ai/support-policies, which shall be provided directly by and through the Reseller, if any, or Sapper, if no Reseller is involved in the transaction. Any additional support, such as Preferred Support or Premium Support, as identified in Sapper’s Support Policies will be available to the Customer, if Customer elects same for an additional cost. If Customer chooses to purchase a Preferred or Premium Support Plan, Sapper will directly provide Customer with such support pursuant to the Professional Support Services purchased and set forth in the applicable Order Form(s). Sapper will use commercially reasonable efforts to respond to and resolve all customer support issues that are attributable to the Subscription Service. Additional information on Sapper’s support obligations, including target response times, is set forth in Sapper’s Support Policies.

     2.4. Customization. Customer may request Sapper to perform and/or develop unique and customized work (“Customized Work”) as per the specifics provided by the Customer in the applicable Order Form(s). Such requests for additional Professional Services will be subject to additional fees as more fully set forth in the applicable Order form(s). Unless otherwise expressly stated in the applicable Order Form, Customized Work shall be provided on a time and materials (“T&M”)basis at Sapper’s T&M rates specified on the Order Form and all Customized Work will be deemed accepted upon delivery. Any changes to the scope of work under an Order Form shall be made by written change order or amendment to the Order Form signed by an authorized representative of each party prior to implementation of such changes.

3. Customer’s Obligations.

     3.1. Proper Use. Customer shall use the Subscription Service in accordance with this Agreement and instructions or guidance provided by Sapper. Customer shall not, and shall ensure that its users shall not, use, submit, or enter any data, information or other materials in the course of using the Subscription Service that (i) violate any applicable laws, rules or regulations, (ii) infringe upon or misappropriate any intellectual property or proprietary rights of others, or (iii) violates the privacy rights of others.

     3.2. Restrictions. Customer shall not and shall not allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Subscription Service by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, or otherwise use the Subscription Service to or for the benefit of third parties; (iv) reproduce or copy the Subscription Service or any component thereof; (v) modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Subscription Service nor any service or product that is similar to or a substitute in whole or in part for the Subscription Service; (vi)disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Subscription Service; or (vii) resell,sublicense, distribute, or transfer the Subscription Service or any component thereof to any third party (including, without limitation, sharing Customer’s username(s) and password(s) for the Subscription Service with any third party).

     3.3. Professional Services; Cooperation. Each Party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: complete and accurate information and data from its employees and agents; coordination of onsite, online and telephonic meetings; Credentials with sufficient permissions for Sapper’s personnel to install and/or configure the Subscription Service where necessary for all applications being integrated; and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.

     3.4. Re-Engagement Fees. Except where the relevant Order Form provides otherwise, scheduling of Sapper’s purchased Professional Service must be agreed to no later than ten (10) business days prior to the date work is scheduled to begin. If Customer subsequently requests scheduling changes or causes delays under an Order Form to which Sapper has dedicated resources and begun work, then (i) in the case of a T&M or block of hours Order Form, hours may be incurred to restart work, which may involve effort for knowledge/information transfer, project re-planning, and other reasonable restart activities; or (ii) in the case of a fixed fee Order Form, additional fees may apply and will be billed to Customer (a “Re-engagement Fee”, as further described below), and must be paid in full by Customer before Sapper will resume work. The Re-engagement Fee shall be calculated to be 15% of the total estimated project price. Delays caused by Customer that exceed ten (10) business days shall entitle Sapper to terminate the relevant Order Form for cause immediately upon written notice

4. Ownership.

              The Subscription Service and its software components, and any Customized Work developed by Sapper for Customer through the use of Sapper’s Professional Services under this Agreement and/or made available to Customer in the course of delivering the Professional Services is licensed and not owned by or sold to Customer. Sapper retains all copyright, trade secret, trademark, patent and other proprietary rights in the Subscription Service and the Customized Work,including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. This license confers no title to, or ownership in, the Subscription Service or any of its components or any Customized Work, and Sapper reserves all rights not expressly granted to Customer.The Customer hereby expressly waives any and all rights to any Customized Work, including but not limited to all right to claims Customized Work as a work for hire, except for its license to use the Customized Work in conjunction with the Subscription Service..

5. Fees Payment

     5.1. Fees. Subject to the terms and conditions of this Agreement, Customer shall pay Sapper all fees associated with the Subscription Service, including but not limited to, the (a) platform fees, (b) automation fees, (c) volume fees and (d) setup fees, or any other annual or non-annual Subscription Service access fees(collectively, the “Fees”) as set forth on an Order Form.

     5.2. Payment Terms. An invoice for the Subscription Service Fees will be issued on the Effective Date of the Order Form and shall be due and payable within thirty (30) days from the date of the issued invoice, payment may be required prior to providing of access to the Subscription Service. Sapper shall have the right to immediately suspend and/or terminate Customer’s access to the Subscription Service without notice, if Customer is delinquent on its payment obligations. Sapper reserves the right to increase the fees associated with the Subscription Service, but no more than five percent (5%) annually.

     5.3. Fees For Professional Services. Sapper shall invoice Customer for Professional Services as provided in the applicable Order Form(s). Unless otherwise expressly stated in the applicable Order Form, (i) charges shall be due and payable within fifteen (15) days from the date of the issued invoice; and (ii) Customer shall reimburse Sapper for any reasonable pre-approved travel-related expenses incurred in conjunction with the Professional Services.

     5.4. Payments Upon Termination. Upon expiration or termination of this Agreement for any reason, Customer shall pay all earned and unpaid Fees and other amounts due Sapper hereunder, which shall be due and payable within fourteen (14) days following the date of expiration or termination of this Agreement.

6. Term and Termination.

     6.1. Initial Term; Renewal. The initial term of this Agreement shall commence on the date that Customer signs an Order Form. Thereafter, this Agreement and each Order Form governed by this Agreement shall be automatically renewed from year to year. Either Party may submit written notice of its intention not to renew to the other Party at least 30 days prior to the end of the then current term.

     6.2. Termination For Cause. Sapper may terminate this Agreement, (a) effective immediately upon written notice to Customer, if Customer breaches any provision in Section 3, 5 or 8, or (b) if Customer breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Sapper. Customer may terminate this Agreement, upon written notice to Sapper, if Sapper breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Customer.

     6.3. Obligations on Termination. Upon termination or expiration of this Agreement, including the Order Form, for any reason, all Subscription Service and Customized Work under this Agreement will immediately cease to exist, and Customer must (i) promptly discontinue all further use of the Subscription Service and Customized Work, and (ii) destroy or return to Sapper all copies of the Subscription Service and Customized Work and provide a written confirmation (“Written Acknowledgement”) signed by an officer of Customer that it has fully complied with this requirement.

     6.4. Survival. Termination of this Agreement shall not relieve either Party of its respective obligations to the other hereunder, including all payment obligations,which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, Sections 4, 6, 7, 8, 9, 10 and 12 shall survive termination of this Agreement.

7. Warranties.

     7.1. Professional Service Warranty. Sapper warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy, and Sapper’s entire liability, shall be the reperformance of the Professional Services. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SERVICES IS ASSUMED BY CUSTOMER. SAPPER EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SAPPER DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SUBSCRIPTION SERVICE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SAPPER OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.

     7.2. Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person entering into this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.

     7.3. Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SUBSCRIPTION SERVICE OR ANY SERVICES PROVIDED BY SAPPER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN\THE WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES HAVE BEEN MADE.

8. Confidentiality.

     8.1. Definition. “Confidential Information” means information about the Customer’s or Sapper’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by the Customer or Sapper as “confidential” or “proprietary;” together with all information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential. Confidential Information shall include, without limitation, the Services and the software component(s) of the Subscription Service, as well as the specific terms, pricing, and fees set forth in this Agreement and the Order Form.

     8.2. Duty of Confidentiality. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

     8.3. Exceptions. The Receiving Party’s obligations under Section 8.1 will not apply to any Confidential Information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was rightfully disclosed to the Receiving Party by a third party; (c) through no fault of the Receiving Party has become generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any action to contest or limit the scope of such required disclosure

     8.4. Return of Confidential Information. The Receiving Party will either, at its option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. The Receiving Party shall provide a signed written acknowledgement (“Written Acknowledgement”) stating that the Receiving Party has appropriately destroyed and permanently erased all electronic copies of all Confidential Information pursuant to this Section.

9. Security and Privacy.s

     9.1. Data Protection. Under the terms of this agreement, and in the natural processing of Customer Data, where the Customer is processing data using Sapper’s Subscription Service and consents to the storage of its’ Customer Data with Sapper, and taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer’s data Sapper will secure that data using reasonable technical solutions and according to the Sapper’s Security Policies, as provided at https://sapper.ai/security-overview. The parties agree and intend that Sapper is a “service provider” as defined under California Consumer Privacy Act of 2018 (CCPA) and other relevant data protection laws. With regard to the Customer Data that Sapper may process in providing the service under this Agreement, Sapper will not (i) sell — as defined by the CCPA — any processed Customer Personal Data, (ii) collect, use, maintain or disclose processed Customer Data except as necessary to perform the Services, or retain processed Customer Data beyond the expiration or termination of this agreement except to the extent required by applicable laws and in accordance with this Agreement. Sapper certifies that it understands and will comply with the foregoing restrictions.

     9.2. Security Breach. In the event of a Security Breach defined by applicable law as reportable to authorities and/or the Customer, or the owners of personal data the Customer has custody of, Sapper agrees to notify the Customer pursuant to applicable law. For personal data that belongs to residents of the EU economic area that the Customer is the custodian of, as defined under the definitions of Personal Data per the EU General Data Protection Regulation 2016/679 (GDPR) Article 4, a separate Data Protection Agreement (DPA) shall be provided by Sapper and executed between the parties.

10. Limitation of Liability

     TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR THE OTHER PARTY’S USE OR RELIANCE UPON THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE FOR SUBSCRIPTION SERVICES TO SAPPER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM.

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11. Indemnification.

     11.1. Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless Sapper and its officers, directors, employees, agents and licensors from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any Customer) resulting from or relating to any breach by Customer of its obligations, duties, or responsibilities under this Agreement. Customer’s obligations under this Section 11.1 are subject to the conditions that Sapper gives Customer prompt written notice of any such claim, allow Customer to control the defense and settlement of the claim (except that Customer may not offer any defense or agree to any settlement that does not unconditionally release the Sapper or that imposes any obligation or liability on the Sapper, without the Sapper prior written consent), and cooperate with Customer, at Customer’s reasonable request and expense, in defending or settling the claim.

     11.2. Indemnification by Sapper. Sapper will defend, indemnify, and hold Customer harmless from any third-party infringement claims to the extent that the claim alleges that the Subscription Services infringes on any patent or copyright, or misappropriates any trade secrets as recognized under the Uniform Trade Secret law. Sapper will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Sapper promptly in writing of such action, giving Sapper sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Sapper’s reasonable request and expense, in assisting with such defense. Notwithstanding the foregoing, Sapper will have no obligation under this Section 11.2 or otherwise with respect to any infringement claim based upon: (i) any unauthorized use, reproduction, or distribution of the Licensed Software by Customer or any of its Customers, (ii) any use of the Subscription Services in combination with other products, equipment, software, or data not supplied by Sapper (including other components of the Customer Products), (iii) any use, reproduction, or distribution of any release of the Subscription Service other than the most current release made available to Customers, or (iv) any modification of the Subscription Service by any person other than Sapper

12. General Provisions.

     12.1. Compliance with Laws. Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Customer agrees that it will not export or re-export the Subscription Service in any form without the appropriate United States and/or foreign government licenses. Customer shall not, unless authorized by U.S. export license or other government authorizations, directly or indirectly export Subscription Service to countries subject to U.S. embargoes or trade sanctions programs. The Parties further agree that they will not use, distribute, transfer or transmit the products, software or technical information (even if incorporated into other products) except in compliance with export Laws. If requested by either Party, the other Party agrees to sign all necessary export- related documents as may be required to comply with export Laws

     12.2. Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Subscription Service) or delegate any of its duties under this Agreement to any third party without Sapper’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.

     12.3. Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by certified or registered mail (postage prepaid and return receipt requested), facsimile, or by electronic mail (e-mail), to the other party at the address, facsimile number, or email address set forth beneath such party’s signature. Notices delivered by courier or certified or registered mail will be effective upon receipt or five (5) business days after being deposited in the mail as required above, whichever occurs sooner. Notices delivered by facsimile or email will be effective upon receipt if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day. Either party may change its address by giving notice of the new address to the other party.

     12.4. Taxes. Customer will be responsible for payment of all taxes (other than taxes based on Sapper’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Sapper under this Agreement or the delivery or Subscription Service to Customer. Customer will make all payments of fees and royalties to Sapper free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees and royalties to Sapper will be Customer’s sole responsibility, and Customer will provide Sapper with official receipts issued by the appropriate taxing authority, or such other evidence as the Sapper may reasonably request, to establish that such taxes have been paid.

     12.5. Governing Law and Venue. This Agreement will be governed by the laws of the State of California without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

     12.6. Remedies. Except as provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to Sapper for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

     12.7. Waivers. All waivers must be in writing and signed by both parties. No waiver or forbearance by either Party hereto of any rights hereunder in any particular instance shall act to preclude such Party from exercising those rights in any other instance.

     12.8. Relationship. Neither Sapper or Customer is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will Sapper or Customer transact any business on the other’s behalf, nor in any form make promises, representations or warranties that incur any liability for or on behalf of the other party. Customer’s relationship to Sapper is that of an independent contractor, and Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Sapper.

     12.9. Feedback. Customer agrees that Sapper may, in its sole discretion, use any feedback, suggestions, and ideas about the Subscription Services or any of its components, in any manner, including in future modifications of the Services and components thereof.

     12.10. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Accordingly, if any particular provision of this Agreement shall be adjudicated to be overly broad, invalid or unenforceable as written, it is the desire and intent of the Parties that the Court revise such provision as it deems necessary to make it consistent with the law and public policy of the jurisdiction and govern law and enforce the provision as so revised.

     12.11. Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

     12.12. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the one and same instrument.

     12.13. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by any Act of God, a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay

     12.14. Publicity. Sapper will have the right to publicize the parties’ relationship, by listing Customer as a Sapper licensee, Customer, or the like. Customer hereby grants to Sapper, during the term of this Agreement, a nonexclusive, royalty-free and fully-paid, worldwide license to use Customer’s name, logo, and other marks as is reasonably necessary for Sapper to exercise its rights as set forth above. Sapper agrees to comply with any commercially reasonable trademark usage guidelines provided to Sapper in writing.

     12.15. Entire Agreement. This Agreement, together with any Order Forms executed pursuant hereto, constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, proposals, understandings, and communication, whether written or oral with respect to the subject matter hereof. To the extent that there is a conflict between the terms and conditions of this Agreement and the Order Form, the terms and conditions of the Order Form shall govern and control unless otherwise specified in the Order Form. This Agreement may be amended only by a written document signed by both parties.