1. Definitions
As used herein, each of the following terms shall have the meanings attributed to them as follows:
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“Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party; and “control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract or otherwise.

“Aggregate Data” means all aggregate and statistical information or analyses collected by Zabble relating to Customer’s use of the Services.

“Analytics Data” means any information or data generated by the Zabble Platform through the analysis of Customer Content, including without limitation any generated report regarding Customer’s waste and waste management activities.

“Authorized User” means Customer’s employees and the employees of Customer’s subcontractors that have been assigned a unique username-password combination to access and use the Services.

“Confidential Information” means all technical, business, financial and other information of a Party that derives economic value, actual or potential, from not being generally known to others, including, without limitation, any technical or non-technical data, designs, methods, techniques, drawings, processes, products, inventions, improvements, methods or plans of operation, research and development, business plans and financial information of such Party.  The Confidential Information of Zabble shall include, without limitation, the Zabble Property and any pricing and Fee information set forth any Order.  Customer’s Confidential Information shall include, without limitation, Customer Content.  Confidential Information does not include information that the receiving Party can document:  (i) has entered the public domain through a source other than the receiving Party and through no fault of the receiving Party; (ii) was rightfully known to the receiving Party without a confidentiality obligation prior to the commencement of the Services; (iii) is disclosed to the receiving Party by a third party that has no confidentiality obligation; or (iv) is developed by the receiving Party independently of and without reference to any Confidential Information.

“Customer Content” means any content or information that Customer, Customer’s subcontractors or their respective Authorized Users upload into the Zabble App or Zabble Platform or otherwise make available to Zabble in connection with the Services, including information about waste management at Customer’s facilities, including without limitation information such as cost, logistics, container sizes, frequency of pickups and location of personnel; provided, however, that Customer Content shall not include any Analytics Data or Aggregate Data.

“Customer Property” means:  (a) Customer Content; and (b) Customer’s Confidential Information.

“Fees” means the Zabble fees for the Services, as set forth in each Order.  

“Intellectual Property Rights” means patent rights (including patent applications and invention disclosures), design rights, copyrights, rights in database, moral rights, trademarks, service marks, trade secrets, know-how, rights in or relating to confidential information and any other intellectual property right (whether registered or unregistered) recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded including all rights of reversion and rights to any applications and pending registrations and the right to sue for and recover damages for past infringements.

“Order” means a written order for the Services that Customer accepts online or Customer mutually executes with Zabble and that specifies the Services that Zabble will provide to Customer.

“Services” means:  (a) the Zabble Platform; (b) the Zabble App; (c) support and maintenance services to be provided by Zabble pursuant to Section 2.4; (d) any professional services, such as training, onboarding and setup, specified in an Order and provided by Zabble; and/or (e) any other services performed by Zabble under this Agreement.

“Term” has the meaning set forth in Section 10.1.

“Upgrades” means any upgrades, updates, revisions, corrections, modifications improvements, bug fixes, patches, maintenance releases, versions, and enhancements to the Zabble Platform and/or Zabble App that Zabble makes generally available to its customers at no additional charge during the Term, excluding any beta versions thereof.

“Zabble API” means Zabble’s proprietary application program interface and associated services, if any, through which Customer may access the Zabble Platform.

“Zabble API Materials” means documentation, code, and other materials, if any, that Zabble provides or makes available to Customer relating to use of the Zabble Platform and/or Zabble API.

“Zabble App” means Zabble’s proprietary mobile app that interoperates with the Zabble Platform and allows Authorized Users, among other things, to tag waste data, pinpoint waste hotspots, manage waste campaigns, upload and store such data on the Zabble Platform, and view Analytics Data.

“Zabble Platform” means Zabble’s proprietary hosted platform that interoperates with the Zabble App and allows Authorized Users, among other things, to upload and store Customer Data and view Analytics Data.

“Zabble Property” means:  (a) the Zabble Platform; (b) the Zabble App; (c) Analytics Data; (d) the Zabble API and Zabble API Materials; (e) any Confidential Information of Zabble; and (f) Aggregate Data.

2. Services

2.1 Provision of Services.
Zabble shall host and provide to Customer the Zabble Platform, Zabble App and other Services in accordance with this Agreement and each Order.  If Customer requests additional services outside the scope of the Services as stated in the initial Order, the Parties will mutually agree upon the scope and terms of such additional services in a subsequent Order.  Zabble’s personnel performing the Services may be either Zabble employees or subcontractor personnel.  Zabble shall be responsible for any acts or omissions of Zabble’s employees or subcontractors that cause Zabble to be in breach of this Agreement.  If Zabble makes a Zabble API available for use by its customers in its sole discretion, Zabble will provide Customer with any Zabble API Materials necessary for Customer to access the Zabble Platform via the Zabble API; provided, however, that Zabble will have no obligation to provide any Zabble API.  Customer agrees to cooperate reasonably with Zabble’s efforts to provide the Services, and Zabble will not be responsible for any delays in providing the Services to the extent caused by Customer’s failure to cooperate or to provide any assistance specified in the applicable Order.

2.2 Customer’s Account and Authorized Users.
‍Zabble will establish in the Zabble Platform any necessary accounts for the number of Authorized Users specified in the Order.  For the avoidance of doubt, login credentials will be associated with named Authorized Users, and Customer shall not:  (a) exceed the total number of Authorized Users purchased in the Order; or (b) allow Customer’s employees or subcontractors to share account credentials to circumvent the limit on the number of Authorized Users purchased in the Order.  In the event Customer desires to transfer an Authorized User login to a new employee or subcontractor, Zabble will assist Customer with such transfer.  Authorized Users of the Zabble Platform and Zabble App will have the ability to use the Zabble Platform and Zabble App to upload Customer Content, review and export Analytics Data, manage Customer’s account, and otherwise use the functionalities described in the user documentation for the Zabble App and Zabble Platform that Zabble makes available to Customer.  Customer agrees to keep Customer’s account information for the Zabble App and Zabble Platform confidential and not to share it with any third party other than Authorized Users.  Customer is fully responsible for all activities that occur under Customer’s account and for maintaining up-to-date and accurate information (including without limitation valid contact information) with respect to Customer’s account.

2.3 Ability to Download Data.
‍At any time during Customer’s subscription period, Customer will have the ability to download any Customer Content and/or Analytics Data then stored in the Zabble Platform.  Customer will not have the ability to download Customer Content or Analytics Data following any expiration or termination of Customer’s subscription period, and Zabble will thereafter have the right to delete any of Customer Content or Analytics Data in its sole discretion.

2.4 Maintenance and Support; Service Levels.
Zabble will provide the maintenance and support services, and comply with the service level obligations, set forth in Zabble’s Maintenance, Support and Service Level Policy set forth at https://zabblezero.com/sla.

2.5 Trial Subscriptions.
In the event that Customer subscribes to an unpaid trial of the Services pursuant to an applicable Order, during the term of that trial subscription:  (a) Zabble will have no liability for any failure to comply with Zabble’s obligations under this Section 2; (b) Section 5 will not apply; (c) the warranties of Zabble in Section 7.1 will not apply, and Zabble will have no obligation or liability under that section; and (d) the indemnification obligations and other obligations of Zabble in Sections 8.1 and 8.2 will not apply, and Zabble will have no obligation or liability under those Sections.  Following any trial subscription, in the event that Customer wishes to enter into a commercial subscription to use the Services, Customer must enter into a mutually agreed Order with Zabble that sets forth the details of that commercial subscription, including any Fees that Customer must pay.        

3. Licenses

3.1 Licenses to Zabble Platform and Analytics Data.
Subject to the terms and conditions of this Agreement, Zabble hereby grants to Customer a non-exclusive, non-sublicensable (except as expressly permitted under this Agreement), non-transferable (except as expressly permitted under this Agreement) revocable license:  (a) during the subscription period set forth in each Order to access and use the Zabble Platform, Zabble App, user documentation, Zabble API (if provided by Zabble) and the Zabble API Materials (if provided by Zabble) for the purposes described in Section 2.2; and (b) on a perpetual basis, to use any Analytics Data that Customer downloads from the Zabble Platform during Customer’s subscription period or that Zabble otherwise makes available to Customer in connection with the Services.  Customer may permit the number of Authorized Users authorized under each Order to exercise the foregoing rights, provided that:  (i) any Authorized Users who are subcontractors shall only exercise such rights in the course of performing services for Customer; and (ii) Customer shall ensure that all Authorized Users comply with this Agreement and Customer will be liable for any breach of this Agreement caused by any Authorized Users.

3.2 Restrictions on Use of Zabble Property.
Customer will not attempt to interfere with or disrupt any of the Zabble Property.  Except as expressly authorized under the Agreement, Customer shall not:  (a) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Zabble Platform, Zabble App or other Zabble Property, or use the Zabble Property for the purpose of creating a competing service; (b) copy, modify, transfer or distribute any portion of the Zabble Platform, Zabble App or other Zabble Property; (c) rent, lease, or provide access to the Zabble Platform, Zabble App or other Zabble Property on a service bureau basis; or (d) violate any usage limitations set forth in the Order.  Customer will use the Zabble Property solely for authorized and legal purposes and will not use the Zabble Property to violate any applicable laws or regulations.

3.3 License to Customer Content.
Subject to the terms and conditions of this Agreement, Customer hereby grants Zabble an irrevocable, perpetual, non-exclusive, royalty-free, non-transferable (except as expressly permitted under this Agreement), sub-licensable (except as expressly permitted under this Agreement), worldwide license to reproduce, store, display and use any of Customer Content (including without limitation any header data or metadata included in Customer Content):  (a) to provide the Services to Customer; (b) for other commercial purposes such as product development and improving products and services, testing and troubleshooting; and (c) to conduct sales and marketing to Customer.  Zabble will have the right to permit its subcontractors to exercise the foregoing rights, provided that Zabble will be responsible for any breach of this Agreement caused by any such subcontractors.  Zabble will also have the right to permit third-party sublicensees to exercise the rights granted in subsection (b), provided that such data is aggregated with data of other Zabble customers and cannot be used to identify Customer or any Authorized User.

4. Proprietary Rights

4.1 Zabble Property.
Except for the limited license granted herein, as between the Parties, all right, title, and interest in and to any Zabble Property, including without limitation any Intellectual Property Rights therein, but excluding any of Customer Property, are and will remain the exclusive property of Zabble and its licensors.  Zabble reserves all rights in and to all the Zabble Property and nothing contained in this Agreement shall be construed as conveying any right or license in such Zabble Property, by implication, estoppel, or otherwise.

4.2 Use of Aggregate Data and Analytics Data.
Customer understands and agrees that Zabble owns the Aggregate Data and Analytics Data generated and will have the right to use such data for product development, conducting sales and marketing to Customer and for other commercial purposes in its sole discretion; provided, however, that Zabble shall only share Aggregate Data and/or Analytics Data with third parties if such data is aggregated with data of other Zabble customers and cannot be used to identify Customer or any Authorized User.

4.3 Customer Property.
Except for the limited license granted herein, as between the Parties, all right, title, and interest in and to any of Customer Property, including without limitation any Intellectual Property Rights therein, are and will remain the exclusive property of Customer and Customer’s licensors.

4.4 Responsibility for Customer Content.
Customer is responsible for all Customer Content, including for the accuracy, legality and integrity of such content, and Customer shall obtain in advance all consents, approvals, licenses, and permissions necessary to collect and upload Customer Content to the Services.  Customer shall not upload to the Services, or permit any third party to upload, any content that violates third-party privacy, publicity, or intellectual property rights; violates applicable laws, regulations or industry standards; or contains hate speech or material that is violent, obscene, pornographic, abusive, defamatory, offensive, or otherwise not reasonably related to the Services.  Without limiting any of Zabble’s other rights and remedies, Zabble shall have the right (but not the obligation) in its sole discretion to remove from the Services any such content that violates this Agreement or any of Zabble’s policies and procedures, or is otherwise objectionable.  CUSTOMER SHALL NOT UPLOAD TO THE SERVICES, OR PERMIT ANY THIRD PARTY TO UPLOAD, ANY CONTENT FOR WHICH CUSTOMER DOES NOT HAVE ALL SUCH NECESSARY OWNERSHIP RIGHTS AND/OR LICENSES, CONSENTS OR PERMISSIONS.

5. Payment Obligations

5.1 Fees and Payment.
Customer shall pay Zabble the Fees set forth in each Order.  Zabble shall invoice Customer in accordance with the payment schedule set forth in each Order.  Customer will pay each invoice in accordance with such payment schedule.  In the event of early termination of this Agreement, Customer will pay any Fees then accrued and payable for Services performed through the effective date of termination.  Except as otherwise expressly provided in this Agreement, all Fees are non-refundable.  Except as otherwise provided in the Order, all amounts billed to Customer shall be expressed in, and Customer shall make all payments in, United States dollars.  Customer shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).  Zabble may, at its option, apply money received from the Customer against any money then due to Zabble.  Zabble and Customer shall use good faith efforts to resolve any disputed invoiced amounts or charges.

5.2 Taxes.
Customer shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if any, legally imposed in connection with the Fees paid or Services delivered hereunder.  Zabble shall separately state on each applicable invoice, and Customer shall pay, any Taxes; provided, however, that Customer shall not be responsible for taxes on Zabble’s net income, profits, business assets, or ad valorem personal property.

5.3 Remedies for Non-Payment.
In addition to any other remedies available to Zabble, including any remedies set forth in the applicable Order, in the event that Customer fails to pay any invoiced amounts when due:  (a) Zabble will have the right to immediately suspend or block Customer’s access to the Services until full payment of such amounts is received; and (b) Customer shall pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and such charge shall accrue beginning on the day after such amount is due.  Customer may withhold payment for any amounts that are disputed by Customer in good faith, and Customer shall not be penalized for non-payment of disputed amounts while the issue is being resolved.

6. Confidentiality, Data Security and Data Privacy

6.1 Confidentiality.
The Party receiving Confidential Information agrees:  (i) to hold and maintain in strict confidence the Confidential Information and not to disclose it to any third party other than its employees and subcontractors who have a need to know and have executed confidentiality agreements with the receiving Party no less protective of the Confidential Information than this Section; (ii) to protect the Confidential Information from disclosure with the same degree of care it uses to protect its own proprietary information similar in nature, but in no event less than a reasonable degree of care; (iii) not to use any Confidential Information for any purpose other performing its obligation or exercising its rights under this Agreement; (iv) to return or destroy Confidential Information promptly upon the disclosing Party’s written request.  For clarity, nothing in this Section 6 will restrict or limit Zabble’s rights to use Customer Content as provided in Section 3.3 and Aggregate Data and Analytics Data as provided in Section 4.2.  Either Party may disclose Confidential Information in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order; provided, however, that the receiving Party agrees to immediately inform the disclosing Party in writing of the existence, terms, and circumstances surrounding the request or order.  The receiving Party acknowledges that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm to the disclosing Party, which harm cannot be compensated by damages alone.  Therefore, in addition to all other rights and remedies at law and in equity, the disclosing Party may seek an injunction to prevent a violation of the obligations of confidentiality.

6.2 Data Security and Privacy.
To prevent unauthorized use or disclosure of Customer Property stored in the Services, Zabble shall comply with its obligations under Zabble’s Data Security Program set forth at https://zabblezero.com/datasecurity. Zabble will have the right to suspend Customer’s access to the Services on an emergency basis:  (a) in the event that Zabble detects any actual or apparent theft, unauthorized access or use of the Services, or other malicious activity by Customer or any third party; and/or (b) to maintain data integrity within the Services.  The parties shall each comply with all applicable privacy laws and regulations relating to the protection of personal data. For the avoidance of doubt, however, the Services to not require any personal data other than Business Card Data (defined below), and Customer shall ensure that any Customer Content that it provides does not contain any personal data of any individual other than Business Card Data.  Customer hereby consents to Zabble’s use of any Business Card Data that Customer provides to Zabble:  (i) for the purpose of providing the Services to Customer; and (ii) in any additional manner described in the Zabble privacy policy governing the Services set forth at https://zabblezero.com/privacy.  “Business Card Data” means any business contact information of Authorized Users, Customer’s employees or Customer’s subcontractors (i.e., name, title, company/organization, business email, business phone number, and business address).

7. Representations and Warranties; Disclaimer

7.1 Representations and Warranties.
Each Party represents and warrants as of the Effective Date and at all times throughout the Term:  (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement by such Party and performance of its obligations hereunder comply with all applicable laws, rules and regulations (including privacy, export control and obscenity laws); (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms; and (d) neither the execution nor performance of this Agreement will violate any agreement to which it is a party or by which it is otherwise bound.  Zabble further represents and warrants to Customer that Zabble will perform all Services in a professional manner with qualified personnel in accordance with industry standards generally accepted in Zabble’s industry. Customer further represents and warrants to Zabble throughout the Term that: (i) Customer has all consents, approvals, licenses, and permissions necessary for Customer to perform all of Customer’s obligations under this Agreement, to provide Customer Content to the Services, and to grant the licenses Customer has granted herein; and (ii) Customer Content does not violate any applicable laws, including without limitation any privacy laws, and does not infringe or misappropriate any Intellectual Property Right, publicity or privacy right or other proprietary right of any third party.

7.2 Warranty Disclaimer.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME.  ZABBLE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DOCUMENTATION WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE SERVICES WILL BE ACCURATE, COMPLETE OR RELIABLE, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED.

8. Indemnification

8.1 Zabble Indemnification.
Each Party represents and warrants as of the Effective Date and at all times throughout that Zabble, at its own expense, will indemnify, defend and hold harmless Customer, Customer’s Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “Customer Indemnitees”) from and against any claim, demand, action, class action, investigation or other proceeding (“Claims”), including but not limited to all damages, losses, liabilities, penalties, fines, judgments, costs and expenses (including attorneys’ fees) arising therefrom (“Losses”), brought by any third party against any of Customer Indemnitees to the extent that such Claim is based on, or arises out of:  (a) any third-party allegation that the Services (excluding any of Customer Content hosted therein), when used by Customer in accordance with this Agreement, violate applicable law or infringe or violate the Intellectual Property Rights of any third party; or (b) the fraud, gross negligence or willful misconduct of Zabble or its employees or subcontractors.

8.2 Additional Obligations of Zabble.
In addition to the indemnification obligations of Zabble set forth in Section 8.1 above, in the event the use of any Service is, or Zabble believes is likely to be, alleged or held to infringe any Intellectual Property Right, Zabble shall at its sole option and expense:  (a) replace or modify the Service so it is non-infringing (provided, that the replaced or modified Service is substantially equivalent); (b) obtain for Customer a license to continue using the Service in accordance with this Agreement; or (c) terminate the applicable Order and refund to Customer the pro-rata amount of any unused Fees prepaid by Customer under such Order.  CUSTOMER AGREES, AS A MATERIAL TERM OF THE AGREEMENT, THAT SECTION 8.1 AND THIS SECTION 8.2 SET FORTH CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF ANY OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY ANY PORTION OF THE ZABBLE PROPERTY AND THAT ZABBLE SHALL HAVE NO INFRINGEMENT LIABILITY TO CUSTOMER EXCEPT AS PROVIDED IN THIS SECTION.

8.3 Customer’s Indemnification.
Customer, at Customer’s own expense, will indemnify, defend and hold harmless Zabble, its Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “Zabble Indemnitees”) from and against any Claim, including but not limited to any Losses arising therefrom, brought by any third party against any Zabble Indemnitee to the extent that such Claim is based on, or arises out of:  (a) the conduct of Customer’s business; (b) Customer Content; (c) any breach or purported breach of Customer’s obligations, representations and/or warranties under this Agreement; or (d) the fraud, gross negligence or willful misconduct of Customer, Authorized Users or Customer’s employees or subcontractors.

8.4 Indemnification Procedures.
The obligations of each Party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the other Party and its Affiliates, and their respective directors, officers, employees, representatives and agents (each, an “Indemnitee”) shall be subject to the following:  (a) the Indemnitee shall provide the Indemnitor with prompt written notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld or delayed); and (c) the Indemnitee shall reasonably cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor.  Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.

9. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER ZABBLE, NOR ITS AFFILIATES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES.  IN NO EVENT SHALL THE TOTAL LIABILITY OF ZABBLE, ITS AFFILIATES OR ITS LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE TO ZABBLE UNDER THE RELEVANT ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.  WITHOUT LIMITING THE GENERALITY OF FOREGOING, IN NO EVENT WILL ZABBLE HAVE ANY LIABILITY OR OBLIGATION, INCLUDING FOR ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ARISING OUT OF THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY ANALYTICS DATA.

11. Miscellaneous

11.1 Notice to United States Government End Users.
If Customer is the U.S. Government or if Customer is a contractor or subcontractor (at any tier) of the U.S. Government and is accessing the Services for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, Customer acknowledges that by using the Services and all associated software and technology of Zabble qualify as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use of the Services and associated software and documentation, and shall supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation.

11.2 Compliance with Law.
Customer represents and warrants that:  (a) Customer is not located in, domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. Government embargo (currently, Crimea, Cuba, Iran, North Korea, Syria and Venezuela); and (b) Customer is not on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted.  Customer shall not export, re-export, import, or transfer any good, service or other item that Customer received from Zabble or Customer’s right to access the Services in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo, and Customer shall not assist or facilitate others in doing any of the foregoing.  Customer acknowledges that it is Customer’s responsibility to comply with any and all applicable export and import and economic sanctions laws.

11.3 Force Majeure.
Zabble shall not be liable to Customer for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond Zabble’s reasonable control.

11.4 Assignment.
Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.  Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign this Agreement and the obligations hereunder to any Affiliate or to any successor of such Party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning Party relating to the Agreement.  This Agreement shall be binding on, and shall inure to the benefit of, the authorized successors and assigns of the Parties.  Any attempt to assign other than in accordance with this provision shall be null and void.

11.5 Notice.
All notices authorized or required to be given pursuant to this Agreement shall be given in writing by email, personal delivery or delivery by an established overnight courier service, addressed to the Party at its address set forth below the signatures in this Agreement (unless such address is changed by written notice to the other Party as provided herein); provided, however, that any notice of breach or termination of this Agreement or any Order given by email shall also be given by one of the other methods listed above.  Notices given by personal delivery or courier shall be deemed given when received, based on delivery records.  Notices given by email shall be deemed given when sent.

11.6 Independent Contractors.
The Parties acknowledge that the relationship of Customer and Zabble is that of independent contractors and that nothing contained in this Agreement shall be construed to place Customer and Zabble in the relationship of principal and agent, master and servant, partners or joint venturers.

11.7 Dispute Resolution.
If any dispute arises under this Agreement, each Party shall submit the dispute for resolution by a level of employee or officer with decision-making authority.  If the dispute cannot be resolved in thirty (30) days, either Party may pursue all available remedies at law or in equity.

11.8 Governing Law; Venue.
This Agreement shall be interpreted in accordance with the laws of the state of California, USA without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts in and for Santa Clara County, California, and the parties specifically consent to Santa Clara County, California, USA, as the exclusive venue for any such proceeding.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded.

11.9 Entire Agreement.
This Agreement, together with any documents incorporated by reference in this Agreement and any Orders, embodies the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the Parties relating to the subject matter hereof.  The following documents will govern in the following order of priority, from highest to lowest, in the event of any conflict:  the Order, this Agreement and any documents incorporated by reference in this Agreement.  For avoidance of doubt, the Parties agree that no terms in any form purchase order, invoice, or other document that either Party may deliver, or imposed by any governmental acquisition regulation, whether or not signed by the other Party, shall be deemed to modify or amend the terms of this Agreement and any such additional or inconsistent terms shall automatically be deemed unacceptable to and rejected by both Parties, and, as such, null and void and of no force and effect. Notwithstanding anything to contrary in this Section 11.9, if Customer and Zabble have signed a separate Agreement regarding the Services, then that agreement and the applicable Order will govern Customer’s access to and use of the Services, and this Agreement will not apply.

11.10 Amendment; Waiver.
No amendment of any provision of this Agreement shall be effective unless set forth in a writing signed by a representative of Customer and Zabble, and then only to the extent specifically set forth therein.   No course of dealing on the part of either Party, nor any failure or delay by either Party with respect to exercising any of its rights, powers or privileges under this Agreement or law shall operate as a waiver thereof.  No waiver by either Party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.

11.11 Severability.
If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the Parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect.  To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision which will implement the commercial purpose of the illegal, invalid or unenforceable provision.

11.12 Customer List.
Unless Customer notifies Zabble in writing that Customer does not wish for Zabble to list Customer’s name and logo, Zabble will have the right to include, on its website and sales collateral, Customer’s name and Customer’s logo (if any) in lists that identify customers of the Services, provided that Customer’s name and logo shall be no more prominently featured than references to any other customers.

11.13 Headings.
The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.