Revver Software as a Service Agreement

THIS  SOFTWARE  AS  A  SERVICE  AGREEMENT  (THE  “AGREEMENT”) is made and entered into in conjunction with the executed quote between the customer and EFILECABINET, INC., a Utah corporation doing business as REVVER (as “REVVER” or “Vendor”).

Whereas Customer wishes to procure from REVVER the Services described herein, and REVVER wishes to provide such Services to Customer, each on the terms and conditions set forth in this Agreement. In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

Capitalized terms shall have the meanings set forth or referred to in this Section.

1.1 “Authorized Reseller” means any independent, non-exclusive reseller or promoter of the Services that
has been authorized by REVVER to market, resell or promote the Services to customers. For the avoidance of doubt,
the resale of the Services shall be deemed to mean the licensing of such Services in accordance with the terms and
conditions of this Agreement.

1.2 “REVVER Materials” means the Software and REVVER Systems and any and all other information, data, documents, materials, works, and other content that are provided or used by REVVER in connection with the Services or otherwise comprise or relate to the Services or REVVER Systems, including any Third Party Materials contained therein, but excluding any Open-Source Components. For the avoidance of doubt, REVVER Materials include all modifications and derivative works of the REVVER Materials and to anything developed or delivered by or on behalf of REVVER under this Agreement.

1.3 “REVVER Systems” means the information technology infrastructure used by or on behalf of REVVER in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by REVVER or through the use of third-party services.

1.4 “Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets and know how, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the world.

1.5 “Order” means the form issued by REVVER or any Authorized Reseller that specifies the SaaS Service ordered by Customer, the associated and pricing and applicable Subscription Term. 

1.6 “Personal Information” means information that Customer provides to REVVER in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health or health insurance data, answers to security questions, and other personal identifiers). Customer’s business contact information is not by itself Personal Information.

1.7 “Sensitive Personal Information” means an (i) individual’s government-issued identification number (including Social Security Number, driver’s license number, or state-issued identification number); (ii) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual’s financial account; (iii) biometric, genetic, health, medical insurance data; and (iv) such other data that is identified as “sensitive” information under applicable law.

1.8 “Services” means the SaaS Services and all other services provided by REVVER to Customer under this Agreement.

1.9 “Software” means the REVVER software application(s) and any third party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that REVVER provides remote access to and use of as part of the Services but, in any event, excluding any software components included with or 2 embedded in the Software that are subject to an open-source copyright license agreement that conforms to a standard definition set by the Open Source Initiative (“Open-Source Components”).

1.10 “Subscription” means the specific SaaS Services identified in a Customer Order.

1.11 “Subscription Term” has the meaning set forth in Section 8.

1.12 “Third Party Materials” means materials and information, in any form or medium, including any other software, documents, data, content, specifications, products, equipment, tools, or components that relate to, are incorporated in, or that are made available through or in connection with the Services that are not proprietary to REVVER.

2. Provision of Services.

Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, during the Subscription Term, REVVER or its Authorized Reseller will provide to Customer the services described in the Order (the “SaaS Services”). REVVER reserves the right, in its sole discretion, to make any changes to the Services, REVVER Materials and REVVER Systems during the Subscription Term that it deems necessary or desirable, including with respect to Third Party Materials. As between the Parties, REVVER has and will retain sole control, at all times, over the operation, provision, maintenance, and management of the Services and REVVER Materials, including the REVVER Systems and selection, deployment, modification, and replacement of the Software.

3. Access and Use of SaaS Services; Restrictions.

3.1 Access and Use. During the Subscription Term, and subject to and conditioned upon Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Customer may access and use the SaaS Services solely for purposes of Customer’s operations. Customer shall ensure authorized persons’ (“Users”) compliance with the terms and conditions of his Agreement that apply to Customer, and Customer shall be responsible and liable for any User’s non-compliance with the terms and conditions of this Agreement that apply to Customer. The foregoing authorizations granted to Customer are non-exclusive and nontransferable.

3.2 Limitations and Restrictions. Customer shall not, and shall not permit any User or other third party to, access or use the Services or REVVER Materials except as expressly permitted by this Agreement. Without limiting the foregoing, Customer shall not: (a) copy, modify, or create derivative works or improvements of the Services or REVVER Materials; (b) rent, lease, sell, sublicense, assign, distribute, or transfer any Services or REVVER Materials, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) otherwise make available any Services or REVVER Materials to any User or other third party; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the REVVER Materials, in whole or in part; (e) bypass or breach any security device or protection used by the Services or REVVER Materials or access or use the Services or REVVER Materials other than through the use of then valid user name, identification number, password, security key or token, PIN, or other security code used, alone or in combination, to verify an individual’s identity and authorization to access and use the SaaS Services (“Access Credentials”); (f) input, upload, transmit, or otherwise provide to or through the Services or REVVER Systems any information or materials that (i) contain, transmit or activate any technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner the Services or the security, integrity, confidentiality or use of the Services (“Harmful Code”), or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, REVVER Systems, or REVVER’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any copyright, trademark, patent, or other Intellectual Property Rights notices from any Services or REVVER Materials; (i) access or use the Services or REVVER Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable federal, state or local law, ordinance, regulation, rule, code, or other requirement of any agency or political subdivision thereof (collectively, “Law”); or (j) otherwise access or use the Services or REVVER Materials beyond the scope of the rights granted under Section 3.1.

4. Customer and REVVER Obligations.

4.1 Customer Systems and Cooperation. Customer shall at all times during the Term (a) set up, maintain, and operate in good repair all Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, (“Customer Systems”) on or through which the Services are accessed or used, and (b) provide all cooperation and assistance as REVVER may reasonably request to enable REVVER to exercise its rights and perform its obligations under and in 3 connection with this Agreement. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.2, Customer shall, and shall cause its Users to, immediately notify REVVER of any such actual or threatened activity, and take all reasonable and lawful measures within its respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.

4.2 Customer Control and Responsibility. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and has and will retain sole responsibility for: (a) all Customer data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer including, without limitation, any application program interfaces and any related specifications and/or documentation in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s Access Credentials; and (e) all access to and use of the Services and REVVER Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services.

4.3 Customer Data. Customer represents, warrants, and covenants to REVVER that (a) Customer owns or otherwise has and will maintain the necessary rights, authorizations and consents in and relating to all Customer information and materials (collectively, “Customer Data”) which are necessary to provide the Customer Data to REVVER and to authorize REVVER to perform the Services, and (b) such Customer Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or any privacy or other rights of any third party or violate any applicable Law. Customer understands and acknowledges that REVVER does not and will not read or modify Customer Data. REVVER has no obligation or liability with respect to the privacy and security of Customer Data except as set forth explicitly in Section 4.4 of this Agreement, and REVVER shall not be liable for any loss, alteration, destruction, or corruption of Customer Data except to the extent such loss, alteration, destruction, or corruption arises out of REVVER’s breach of its obligations under this Agreement or REVVER’s gross negligence or willful misconduct.   

4.4 Data Protection and Security.  REVVER will use commercially reasonable efforts to establish and maintain administrative, technical, and physical safeguards in accordance with applicable industry standards and REVVER’s information security policy, as amended or updated from time to time, that are designed to: (i) protect the security and integrity of the REVVER Systems; and (ii) guard against reasonably anticipated threats or hazards to the security and integrity of the REVVER Systems. Customer is responsible for properly configuring and using the Services and taking its own steps to implement and maintain appropriate security and protection of Customer Data. Customer agrees to comply with all Laws applicable to the creation, collection, receipt, transmission, access, processing, storage, disposal, use or disclosure of Customer Data. Customer will be solely responsible for any unauthorized creation, collection, receipt, transmission, access, processing, storage, disposal, use or disclosure of Customer Data under Customer’s control or in Customer’s possession, except to the extent any such unauthorized creation, collection, receipt, transmission, access, processing, storage, disposal, use or disclosure arises out of REVVER’s breach of its obligations under this Agreement or REVVER’s gross negligence or willful misconduct. Customer shall at all times comply with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Customer Data to REVVER.  

4.4.1 Data Breach Response. REVVER maintains and will continue to maintain a cyber incident breach response plan in accordance with applicable law and accepted industry standards (“Cyber Incident Response Plan”) and will implement the procedures required under such plan on the occurrence of any unauthorized access to or disclosure or acquisition of Personal Information in REVVER’s possession or control, as defined under applicable law (“Data Breach”). REVVER will notify Customer of a Data Breach without 72 hours after REVVER becomes aware of and confirms such a breach. Promptly following REVVER’s notification to Customer of a Data Breach, the Parties will reasonably coordinate with each other, as necessary, to investigate the Data Breach in accordance with REVVER’s then current Cyber Incident Response Plan.

5. Fees and Payment.

5.1 Fees. Customer shall pay REVVER or its Authorized Reseller the fees set forth in the applicable Order (the “Fees”) in accordance with the terms of this Section 5. All Fees for the Subscription Term are due annually in advance upon receipt of an invoice, unless otherwise stated in the Order. Fees shall be payable in U.S. dollars. 

5.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by applicable Law or regulatory authority on any amounts payable by Customer hereunder or the provision or receipt of the Services, other than any taxes imposed on REVVER's income.

5.3 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies 4 that may be available, Customer will be subject to interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted by Law.

6. Intellectual Property Rights; Government Rights In Technical Data and REVVER Materials.

6.1 Services and REVVER Materials. Nothing in this Agreement grants to Customer any right, title, or interest in or to any Intellectual Property Rights in or relating to the Services or REVVER Materials, including with respect to any Third Party Materials, in each case whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to REVVER and its licensors. REVVER and its licensors are and will remain the sole and exclusive owner of all right, title, and interest in and to the Services and REVVER Materials, including all Intellectual Property Rights therein. Other than the right to receive the Services hereunder, neither REVVER nor any of its licensors grant to Customer any rights with respect to the Services or REVVER Materials. 

6.2 Service Analyses. REVVER may (a) compile statistical and other information related to the performance, operation, and use of the Services, and (b) collect and use data from the REVVER Systems in aggregated and pseudonymized form for security and operations management, to create statistical analyses and for research and development purposes (a) and (b) collectively, “Service Analyses”).

7. Confidentiality.

7.1 Confidential Information. In connection with this Agreement either Party (the “Disclosing Party”) may disclose or make available Confidential Information (as defined below) to the other Party (the “Receiving Party”). “Confidential Information” means any information or data a reasonable person would conclude is of a confidential nature given the type of information disclosed and/or the facts and circumstances of such disclosure. Without limiting the foregoing, all REVVER Materials are the Confidential Information of REVVER and all Customer Data is the Confidential Information of Customer.

7.2 Obligations. The Receiving Party shall (a) not access or use the Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) not disclose or permit access to the Confidential Information other than to those who (i) need to know such Confidential Information for purposes exercising its rights or performance of its obligations under and in accordance with this Agreement, (ii) have been informed of the confidential nature of the Confidential Information and Receiving Party’s obligations under this Section 7, and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7; (c) safeguard the Confidential Information using at least the degree of care it uses to protect its own similar information and in no event less than a reasonable degree of care; and (d) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 7. 

7.3 Return of Confidential Information. Upon the expiration or termination of the applicable Subscription Term for any reason, or upon the reasonable request of Disclosing Party, all Confidential Information, together with any copies that may be authorized herein, shall be returned to the Disclosing Party or, if requested by Disclosing Party, destroyed and certified by Receiving Party as destroyed.

8. Term and Termination.

8.1 Subscription Term. The initial term of the Subscription commences as of the date specified in the Order (“Order Date”) and, unless otherwise expressly stated in an applicable Order, will continue in effect for a period of one (1) year (“Initial Term”). Thereafter, each Subscription under any Order will automatically renew for successive periods of the same duration as the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Subscription Term”), unless either Party provides the other Party with written notice of non-renewal at least 60 days prior to the end of the then-current Subscription Term. Unless otherwise set forth in an Order, pricing during each renewal term of an Order shall be REVVER’s then current pricing for the applicable Subscription, which in no case shall increase by more than 5% per annum without written agreement by both parties.

8.2 Service Suspension.

(a) REVVER may immediately suspend or otherwise deny Customer’s and/or any Users’ access to or use of all or any part of the Services or REVVER Materials, without prior notice and without incurring any resulting obligation or liability, if (i) REVVER receives a judicial or other governmental demand, order, request, or requirement that expressly or by reasonable implication requires REVVER to do so; or (ii) REVVER reasonably believes that Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services.

(b) REVVER may suspend or otherwise deny Customer’s and/or any Users’ access to or use of all or any part of the Services or REVVER Materials, without incurring any resulting obligation or liability, upon ten (10) days’ prior written notice to Customer (email sufficient), if REVVER reasonably believes that any of the following have 5 occurred and Customer fails to cure such breach or issue within ten (10) days after receiving notice from REVVER: (i) Customer or any User has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any User has breached the provisions of Section 3.2 or Section 4.3; or (iii) Customer fails to pay any amount when due under this Agreement.   

8.3 Termination of Agreement. In addition to any other express termination right set forth elsewhere in this Agreement:

(a) REVVER may terminate this Agreement, effective upon notice to Customer, (i) if Customer breaches any of its obligations under Section 3.2; (ii) REVVER receives a judicial or other governmental demand, order, request, or requirement that expressly or by reasonable implication requires REVVER to do so; or (iii) REVVER reasonably believes that Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services.

(b) Either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.

8.4 Effect of Suspension, Expiration or Termination.

(a) No suspension pursuant to Section 8.2 shall excuse Customer from its obligations to pay any Fees due to REVVER under this Agreement. During the term of any such suspension, REVVER will disable all Customer’s and its Users’ access to the SaaS Services and REVVER Materials; provided, however, that all other obligations of the Parties pursuant to this Agreement shall remain effective.

(b) Upon any expiration or termination of this Agreement, all rights granted to Customer hereunder will immediately terminate and REVVER may disable all Customer’s and its Users’ access to the SaaS Services and REVVER Materials. Termination or expiration shall not relieve Customer of its obligation to pay all charges payable to REVVER hereunder. Upon termination, Customer will have no further access to Customer Data and all such Customer Data may be erased and permanently destroyed. Upon request, Customer will have 30 days after termination to access its account solely for the purpose of downloading any Customer Data. Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.

9. Indemnification by REVVER..

9.1 Indemnification by REVVER. REVVER shall defend, indemnify, and hold the Customer harmless against all costs, expenses, damages, losses and liabilities, including legal fees, incurred by the Customer arising out of any claim, demand or action alleging that any use of, or access to, the REVVER Systems or REVVER Materials infringes or misappropriates, any patent, design, copyright, trademark, trade secret or other intellectual property right. Customer shall give REVVER written notice of any such claim. Without limiting any other remedies of Customer contained herein, in the event that any part of the System furnished herein becomes the subject of a claim referred to in this Section 9, REVVER shall at its option and at its sole expense, (a) procure for Customer the right to continue using such part of the REVVER Systems or REVVER Materials; or, (b) modify or replace such part of the REVVER Systems to remove it from the ambit of such claims provided that such modification or replacement is capable of performing at the levels of the replaced or previously unmodified REVVER Systems. In the event that REVVER is unable to procure Customer’s right to continue to use the REVVER Systems or REVVER Materials or modify or replace such part of the REVVER Systems within 30 thirty days after written notice from Customer of a claim referred to in this Section 9 (the “Cure Period”), REVVER, without prejudice to any other rights Customer may have herein, may terminate this Agreement at any time after the Cure Period upon written notice to Customer, in which case REVVER shall refund Customer on a pro rata basis for any prepaid Fees. The provisions of this Section survive the termination or expiration of this Agreement.

9.2 Indemnification by Customer. Customer shall defend, indemnify and hold REVVER, its officers, shareholders (or members or partners, if applicable), subsidiaries, employees, affiliates, agents and other representatives harmless from any Claims to the extent alleging that the Customer Data (as provided by Customer to REVVER) infringes the rights of, or has caused harm to a third party, or violates any applicable law or regulation.

10. Disclaimer.

CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES AND REVVER MATERIALS IS AT CUSTOMER’S SOLE RISK. ALL SERVICES AND REVVER MATERIALS ARE PROVIDED “AS IS” AND REVVER AND ITS LICENSORS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF 6 DEALING, USAGE, OR TRADE PRACTICE. NEITHER REVVER NOR ITS LICENSORS OR SERVICE PROVIDERS MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES OR REVVER MATERIALS, INCLUDING ANY THIRD-PARTY MATERIALS, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.

11. Limitations of Liability.

11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL REVVER OR ANY OF ITS LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE.

11.2 EXCEPT AS SET FORTH IN SECTION 11.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF REVVER AND ITS LICENSORS AND SERVICE PROVIDERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO REVVER UNDER THIS AGREEMENT DURING THE PRECEDING 12 MONTH PERIOD.

11.3 THE LIMITATIONS SET FORTH IN SECTION 11.2 SHALL NOT APPLY TO THE FOLLOWING (COLLECTIVELY, “EXCEPTIONAL LIABILITY”): (a) REVVER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; (b) LIABILITY ARISING OUT OF REVVER’S GROSSLY NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT, OR FRAUD; OR (c) REVVER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7. IN NO EVENT WILL THE AGGREGATE LIABILITY OF REVVER ARISING OUT OF OR RELATING TO EXCEPTIONAL LIABILITY, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF (i) THREE TIMES THE TOTAL FEES PAID BY CUSTOMER TO REVVER UNDER THIS AGREEMENT DURING THE PRECEDING 12 MONTH PERIOD OR (ii) $200,000.

11.4 THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 11 SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12. Miscellaneous

12.1 Force Majeure. Except for the obligation to make payments when due, in no event will either Party be liable or responsible to the other Party, or be deemed to be in breach of this Agreement, to the extent a failure or delay is caused by any circumstances beyond such Party’s reasonable control, including without limitation acts of God, flood, fire, earthquake or explosion, war, terrorism, riot or other civil unrest, pandemic, embargoes, strikes, or any action taken by a governmental authority or failure of adequate power or telecommunications.

12.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

12.3 Marketing and Publicity. Customer agrees that REVVER may identify Customer as a customer and use Customer’s name, logo and trademark in Vendor’s promotional materials with Customer’s express written consent. Upon written approval, Customer grants REVVER the right to use Customer’s name and/or logo within product literature, press release(s), website, social media, and other standard marketing materials (including, without limitation, online or print-based lists, quotes, case studies, and video testimonials). Should, at any time, Customer desire that REVVER stop using its name and logo as described herein, REVVER shall do so at Customer’s request.

12.4 Cumulative Remedies; Amendment; Waiver. Any remedy of REVVER set forth in this Agreement is in addition to any other that may be available to REVVER at Law, in equity, or otherwise. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in 7 exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.5 Assignment. Except in the event of a merger, acquisition or corporate restructuring, neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of Law, or otherwise, without the other Party’s prior written consent, which consent shall not be unreasonably withheld. No delegation or other transfer will relieve either Party of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 11.6 is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

12.6 Severability. If any covenant, condition, or provision contained in this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, each such covenant, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and each resulting covenant, condition, or provision shall remain in full force and effect.

12.7 Notices. All notices required under this Agreement have binding legal effect only if in writing (email sufficient).

12.8 Governing Law. This Agreement is governed by and shall be construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah.   

12.9 Entire Agreement. This Agreement and any Exhibits hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, agreements, or communications, both written and oral, with respect to such subject matter.

12.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

12.11 Export Control. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction, or individual or entity to which export, reexport, or release is prohibited by applicable Law. Customer will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

12.12 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections and exhibits, mean the sections of and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein