Tango has developed a proprietary software tool (the “Software”) to assist users in developing training and documentation materials for Customer’s employees (referred to herein as Customer’s “Employees”), partners, and customers.
1.1 Software License. Subject to the terms and conditions hereof, Tango hereby grants to Customer a limited, non-transferable, and non-exclusive license (the “License”) to use the Software during the term hereof solely in accordance with the terms of this Agreement and any specifications, instructions, and documentation (collectively, the “Documentation”) provided by Tango from time to time. The License shall be subject to the terms and conditions of one or more order forms to be executed between Tango and Customer or other online or offline instrument used to register for the Services (as defined below) (each, an “Order Form”). Customer shall use the Software and the Documentation solely for its own internal business purposes and in accordance with the limitations, if any, set forth on an Order Form.
1.2 Modifications to the Software. Tango may modify and/or update the Software from time to time, so long as such modification(s) do not materially reduce the Software’s performance or capabilities. Tango shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer, any of Customer’s authorized employees and personnel who are authorized to access the Software and Documentation (“Authorized Users”), or any other third party may incur as a result of modifications to the Software in accordance with this Section 1.2.
1.3. Software Support. Tango will use commercially reasonable efforts to provide Customer ongoing support related to the Software as set forth in any Order Form (“Software Support Services”).
1.4 Additional Services. During the term hereof, Tango may agree to provide Customer with such additional services as are set forth on any Order Forms executed hereunder (together with the Software Support Services, the “Services”). Except as specified herein or in an executed Order Form, nothing in this Agreement or in any Order Form shall be construed as a guarantee of future Services outside the scope of any executed Order Form.
2.1 Fees. In consideration for the grant of the License and the provision of the Services, Customer shall pay to Tango the fees set forth in the applicable Order Form (the “Fees”) in accordance with this Section 2. Any Fees expressed in a fixed monthly amount may be prorated for any partial month of service based on the number of days the applicable Order Form was in effect during the month and the actual number of days in such month.
2.2 Invoices. Unless otherwise indicated on an Order Form, all invoices shall be due and payable within ten (10) days of the date of the invoice, and may be satisfied via an automatic charge to the credit card Customer keeps on file in Customer’s online account with the Service. Customer hereby agrees that Tango may charge any such credit card in Customer’s account for any Fees incurred by the Customer.
2.3 Method of Payment. Unless Tango states otherwise in writing, all amounts due and payable hereunder shall be paid (a) in U.S. Dollars, and (b) by credit/debit card via an authorized Tango payment processor or by any other method approved in writing by Tango.
2.4 Interest and Taxes. Interest on any late payments will accrue at the rate of 1% per month, or the highest rate permitted by applicable law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, and all similar fees levied upon the provision of the Software and the Services, excluding only taxes based solely on Tango’s income. Customer will indemnify and hold Tango harmless from and against any and all such taxes and related amounts levied upon the provision of the Software and the Services and any costs associated with the collection or withholding thereof, including penalties and interest.
3.1 Restrictions on Use of Software. Except as expressly authorized by this Agreement, Customer may not: (a) modify, disclose, alter, translate or create derivative works of the Software or the Documentation (or any components of the foregoing); (b) sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software or the Documentation (or any components of the foregoing); (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Software, in whole or in part; (d) use the Software to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (e) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Laws; (f) interfere with or disable any features, functionality, or security controls of the Software or otherwise circumvent any protection mechanisms for the Software; (g) copy, frame or mirror any part or content of the Software; (h) build a competitive product or service, or copy any features or functions of the Software; (i) interfere with or disrupt the integrity or performance of the Software; (j) attempt to gain unauthorized access to the Software or related systems or networks; (k) disclose to any third party any performance information or analysis relating to the Software; (l) use the components of the Software or allow the transfer, transmission, export or re-export of such software components or any portion thereof in violation of any export control Laws administered by the U.S. Commerce Department, OFAC, or any other government agency; (m) remove, alter or obscure any proprietary notices in or on the Software, including any copyright notices, or (n) cause its personnel or any third party to do any of the foregoing. Customer will use its best efforts to prevent unauthorized access to, and use of, any passwords, and will immediately notify Tango in writing of any unauthorized use that comes to Customer’s attention. Notwithstanding anything to the contrary in this Agreement, Tango may temporarily suspend or permanently revoke Customer’s access to the Service if Tango determines or reasonably suspects that Customer has or intends to violate, or has assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a “Service Suspension” and any such revocation, a “Service Revocation”). Tango shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any third party may incur as a result of a Service Suspension or Service Revocation, and Client shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation. Any breach by Customer of any provision of this Section 3 shall be a material breach.
3.2 Customer Responsibilities. Customer shall be solely responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software and the Services; (b) maintaining the security of Customer’s infrastructure, equipment, accounts, passwords (including but not limited to administrative and user passwords) and files; (c) providing Tango and its personnel with support and system access needed to perform the Services; and (d) all acts and omissions of Authorized Users in connection with their use of the Software and Services.
3.3 Age Policy. The Service is not intended to be used by any person under 18 years of age. By using the Service, you represent to Tango that you are at least 18 years old and are legally able to enter into this Agreement. Tango does not knowingly collect or solicit personally identifiable information from anyone under 18; if you are under 18, please do not use or attempt to use the Services or send any personal information about yourself to Tango. If Tango learns it have collected personal information from anyone under 18, Tango will delete that information.
3.4 Inappropriate and Illegal Content Prohibited. Customer agrees not to transmit any inappropriate content on the Software including, but not limited to, libelous, defamatory, obscene, pornographic, abusive, or threatening content; content that advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; content that is misleading or not true; or advertise or otherwise solicits funds for goods or services. Tango may remove such content from Tango’s servers, and Tango may suspend or revoke Customer’s access to the Software. Tango reserves the right to investigate, and seek applicable remedies for, violations of applicable law to the fullest extent of the law.
3.5 Your Use of Others’ Intellectual Property. Although you may provide information and content to Tango as part of your use of the Software, you agree to be respectful of others’ intellectual property rights. You may not upload, transmit, or otherwise distribute any information or content in violation of intellectual property laws or proprietary rights of any third parties. If you do not respect a third party’s intellectual property or proprietary rights, you are solely responsible for any violations of law. In addition, you are solely responsible for infringement of third party rights caused by any information that is generated or submitted through your use of the Software. Tango takes claims of intellectual property infringement seriously. As such, Tango reserves the right to suspend and/or revoke access to the Software for any user who is found to have infringed on the intellectual property rights of third parties, or us, or otherwise is found to have violated any intellectual property laws.
3.6 Digital Millennium Copyright Act. Tango reserves the right to suspend and/or terminate any user’s account who is found to have infringed on the intellectual property rights of users, Tango, or third parties, or who violated any laws related to intellectual property. In the event that you have a good faith belief that your intellectual property rights or the rights of someone else have been violated on our Software, and you want us to delete, edit, or disable the material in question, you must provide us with all of the following information (as required by the Digital Millennium Copyright Act of 1998): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to our designated agent at:
Tango Technology, Inc.
1267 Willis St, STE 200
Redding, CA 96001
3.7 Third-Party Services. You understand that, even if the Offending Content has been removed from Tango’s servers (whether by Tango proactively or by You pursuant to a request under Section 3.6), such Offending Content may nonetheless remain on third-party services, including third-party websites or platforms (“Third-Party Services”) where the Offending User may have shared the Offending Content. You agree that it is Your, the owners of the Third-Party Services, or the Offending User’s responsibility, and not Tango’s, to moderate, monitor, and remove any Offending Content from Third-Party Services. To the extent Tango suffers any Losses (as defined below) as a result of an Offending User’s violation of this Agreement, the Offending User shall indemnify Tango pursuant to Section 8. As used only in this Section 3.7: (i) “You” shall mean such person or entity who has had his/her/its content shared or transmitted in violation of this Agreement on the Software, or who has filed a request pursuant to Section 3.6; (ii) “Offending Content” shall mean any content that has been shared or transmitted via the Software in violation of this Agreement; and (iii) “Offending User” shall mean such user of the Software who shared or transmitted the Offending Content via the Software.
4.1 Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, or that otherwise should reasonably be deemed to be confidential based on the context and nature of the information. Confidential Information includes, but is not limited to, computer programs in source and/or object code, technical drawings, algorithms, know-how, prototypes, models, samples, formulas, processes, ideas, inventions (whether patentable or not), discoveries, methods, strategies and techniques, research, development, design details and specifications, financial information, procurement and/or purchasing requirements, customer lists, information about investors, employees, business or contractual relationships, sales and merchandising data, business forecasts and marketing plans, and similar information.
4.2 Obligations. The Receiving Party shall maintain in confidence the Confidential Information during the term of this Agreement and for a period of two (2) years thereafter, and will not use such Confidential Information except as expressly permitted in this Agreement; provided, however, that any trade secrets shall be treated confidentially for so long as such information qualifies for protection as trade secret under applicable law. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and only if such directors, officers, employees and/or contractors are bound by confidentiality obligations with respect to such Confidential Information no less restrictive than the non-disclosure obligations contained in this Section 4.2. The Parties agree that Customer Data (as defined below) shall be considered Customer’s Confidential Information and the terms and conditions of this Agreement will be treated as Confidential Information of both Parties and will not be disclosed to any third party; provided, however, that each Party may disclose the terms and conditions of this Agreement (a) to such Party’s legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or similar transaction.
4.3 Exceptions. Notwithstanding anything to the contrary herein, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by applicable Laws or by a subpoena or order issued by a court of competent jurisdiction or other governmental authority (each, an “Order”), but solely on the conditions that the Receiving Party, to the extent permitted by applicable Laws: (i) gives the Disclosing Party written notice of the Order promptly after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Order and seek a protective order or other appropriate relief. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Section 4.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
4.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
5.1 Generally. Except as specified in Section 5.3, no provision of this Agreement shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights (collectively, “Intellectual Property Rights”) from either Party to the other.
5.2 Software and Services. Tango shall own and retain all right, title and interest in and to: (a) the name, logo, trademarks, and service marks (collectively, “Marks”) associated with its business; (b) the Software and the Documentation; (c) all improvements, enhancements and modifications to the Software and the Documentation; (d) any work products or deliverables resulting from any Services provided to Customer under this Agreement (except for any work products or deliverables that is expressly set forth in an Order Form to be owned by Customer); and (e) all Intellectual Property Rights related to any of the foregoing. Tango reserves all rights in and to the Software and the Documentation not expressly granted to Customer in this Agreement. Except for the rights and licenses expressly granted in this Agreement, nothing in this Agreement grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any right, title, or interest in or to the Software or the Documentation.
5.3 Feedback. If Customer or any of its Authorized Users submits written suggestions or recommended changes to the Software or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, the “Feedback”), Tango is free to use such Feedback regardless of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Tango, on Customer’s behalf and on behalf of its Authorized Users and/or agents, all Intellectual Property Rights in and to the Feedback, for any purpose whatsoever, although Tango is not required to use any Feedback.
5.4 Use of Customer Marks. Customer shall own and retain all right, title and interest in and to the Marks relating to Customer’s business and all Intellectual Property Rights related thereto.
6.1 Ownership of Customer Data. All Customer Data (as defined below), including any Customer Data input into the Software by Customer or generated through Customer’s use of the Software, shall belong to Customer, provided that Tango shall have the right to access, use, and process such Customer Data to provide the Services and the functionality of the Software to Customer during the term of this Agreement. Customer acknowledges and agrees that Customer is solely responsible for any and all Customer Data that is input into the Software by Customer, including such Customer Data’s legality, reliability, and appropriateness. As used herein, “Customer Data” means data uploaded by Customer or resulting from Customer’s use of the Software, including Personal Data, Employee Personal Data and Third Party Personal Data (as such terms are defined below).
6.2 Anonymized Data. Customer acknowledges and agrees that Tango may anonymize and aggregate Customer Data in a manner that it can no longer reasonably be used to identify individuals (“Anonymized Data”). Customer grants Tango and its affiliates, an unlimited, perpetual, and irrevocable license to use the Anonymized Data for the purpose of improving the Software and Services, to understand and analyze trends across Tango’s customers, and for any other purpose.
6.3 Data Processing Agreement. To the extent that Customer Data includes personal data subject to applicable data protection laws, including the EU General Data Protection Regulation and the California Consumer Privacy Act, the terms of the Data Processing Agreement available at tango.us/dpa (the “DPA”) shall govern the processing of such data. The Parties agree that Tango may amend the terms of the DPA from time to time to the extent that Tango reasonably determines that such amendment is necessary to comply with applicable data protection laws. The latest posted version of the DPA shall govern the processing of personal data subject to applicable data protection laws.
6.4 Employee and Third Party Data. Customer acknowledges that, as part of its use of the Software, Customer may transmit their own personal data (“Personal Data”) or the personal data of Employees (“Employee Personal Data”) and personal data of third parties (“Third Party Personal Data”). To the extent Customer transmits or inputs any Personal Data, Employee Personal Data or Third Party Personal Data through or into the Software, Customer represents and warrants that it has obtained all legally required consent to capture, collect, display, input, share and transmit such Personal Data, Employee Personal Data and Third Party Personal Data into and through the Software.
7.1 Generally. Each Party represents and warrants that (a) it is validly existing and in good standing under the Laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms, except to the extent limited under Laws relating to insolvency, bankruptcy, and the like.
7.2 Tango’s Representations and Warranties. Tango represents and warrants that (a) the Software will conform, in all material respects, to the Documentation and any other specifications set forth in the applicable Order Form, and (b) it will perform the Services, if any, in a professional and workmanlike manner.
7.3 Customer’s Representations and Warranties. Customer represents and warrants that Customer: (a) will use the Software and the Services only in compliance with this Agreement and all applicable local, state, federal and international laws and regulations, rules, orders, and ordinances (collectively, “Laws”); and (b) shall not infringe upon any third party’s Intellectual Property Rights in its use of the Software and the Services.
7.4 Disclaimer. THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TANGO DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE AND THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TANGO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE.
8.1 Customer Indemnity. Customer, at its sole expense, will defend Tango and its affiliates, directors, officers, employees, and agents (“Tango Indemnitees”) from and against any third-party claims, suits, actions or proceedings (each a “Claim”) and indemnify Tango Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) (collectively, “Losses”) to the extent arising from or relating to (a) any negligence or willful misconduct by Customer or its affiliates, directors, officers, employees, or agents, or any other party acting on Customer’s behalf (the “Customer Indemnity Parties”); (b) any alleged or actual breach of Customer’s representations, warranties and obligations under this Agreement; (c) the use of the Software by Customer Indemnity Parties, including without limitation any claim by Customer’s employees or agents related to the use of the Software by Customer Indemnity Parties; and (d) any violation of applicable Laws and Orders by Customer Indemnity Parties.
8.2 Procedures. The obligations of Customer to indemnify Tango pursuant to Section 8 are conditioned upon Tango: (a) giving prompt written notice of the Claim to Customer once Tango becomes aware of the Claim (provided that failure to provide prompt written notice to the Customer will only alleviate an Customer’s obligations under Section 8 to the extent that any associated delay materially prejudices or impairs the defense of the related Claims); (b) granting Customer the option to take sole control of the defense (including granting Customer the right to select and use counsel of its own choosing) and settlement of the Claim (except that Tango’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of Tango); and (c) providing reasonable cooperation to Customer and, at Customer’s request and expense, assistance in the defense or settlement of the Claim.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY THE FEES, A BREACH OF SECTION 4 (CONFIDENTIALITY) OR SECTION 5 (INTELLECTUAL PROPERTY RIGHTS), AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TANGO DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDEING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
10.1 Term. This Agreement commences upon the Effective Date and continues in effect until the expiration of the period specified in the initial Order Form (the “Initial Term”). Thereafter, in the event that the Parties execute one or more subsequent Order Forms, this Agreement will automatically renew for the time period specified in such additional Order Form(s) (each, a “Renewal Term”). Each Order Form shall specify a term applicable to such Order Form.
10.1.2 Either Party may terminate this Agreement at any time. If you would like to terminate this Agreement, you may do so by accessing your account.
10.2.2 Either Party may terminate this Agreement as follows: (a) if the other Party materially breaches this Agreement (including, without limitation, in the case of Customer, nonpayment of the Fees) and does not remedy such failure within thirty (30) days after its receipt of written notice of such breach (unless the breach is of a nature that is incapable of being cured, in which case the non-breaching Party may terminate this Agreement immediately upon written notice); (b) if the other Party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (c) as otherwise expressly set forth in this Agreement or an Order Form.
10.3 Effect of Termination. Upon any termination of this Agreement: (a) the License and any other rights granted to Customer under this Agreement with respect to the Software and the Services will immediately cease; provided, however, to the extent that Customer terminates this Agreement pursuant to Section 10.2.1, Customer will continue to have access to the Software and the Services for the remainder of such portion of the Initial Term or Renewal Term, as applicable, for which Customer has prepaid the applicable Fees, and Customer shall not be eligible to receive a refund of such prepaid Fees; provided, further, that if Customer deactivates an Authorized User on Customer’s account, but not the Agreement, Customer’s account shall be credited such prorated portion of any prepaid Fees associated with the such Authorized User for the remainder of the Initial Term or Renewal Term, as applicable, on future invoices (the foregoing is not a cash refund),(b) Customer shall immediately pay to Tango all amounts due and payable up to and through the effective date of termination, (c) except for a termination by Customer pursuant to Section 10.2.2(a) or a termination by Tango pursuant to Section 10.2.1, Tango shall have no obligation to refund any prepaid Fees, and (d) the Receiving Party will, at the option of the Disclosing Party, promptly return to the Disclosing Party or destroy all Confidential Information of Disclosing Party then in the Receiving Party’s possession. Upon Tango’s termination of this Agreement pursuant to this Section 10.2.1, or Customer’s termination pursuant to Section 10.2.2(a), Customer shall be entitled to a refund of Fees for any period for which Customer has already paid but will not receive Services. Notwithstanding any terms to the contrary in this Agreement, any provision of this Agreement that, by its nature and context, is intended to survive this Agreement (including, without limitation, Customer’s obligation to pay any unpaid Fees and Sections 4 through 11, inclusive) will survive any termination of this Agreement.
11.1 Entire Agreement. This Agreement, including all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
11.2 Independent Contractors. Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
11.3 Dispute Resolution. The Parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this Section 11.3. First, the Parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the Parties agree to participate in binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in San Francisco, California. The Parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing Party shall be entitled to costs and fees (including reasonable attorneys’ fees). Either Party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this Section 11.3. In the event that the dispute resolution procedures in this Section 11.3 are found not to apply to a given claim, or in the event of a claim for injunctive relief as specified in the previous sentence, the Parties agree that any judicial proceeding will be brought in the state courts of San Francisco, California. Both Parties consent to venue and personal jurisdiction there. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS AGREED TO OTHERWISE BY THE PARTIES, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.
11.4 Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
11.5 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by either Party, by operation of applicable Laws or otherwise, without the prior written consent of other Party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either Party may assign its rights and obligations hereunder in connection with a merger, reorganization, consolidation, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
11.6 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a Party unless in writing and signed by a duly authorized representative of each Party. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by applicable Laws. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
11.7 Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (a) the date of delivery if delivered personally, (b) five (5) calendar days (or upon written confirmed receipt) after mailing if duly deposited in registered or certified mail or express commercial carrier, or (c) one (1) calendar (or upon written confirmed receipt) after being sent by email, addressed to Customer or to Tango, as the case may be, at the address or email address shown on the signature page of this Agreement or to such other address or email address as may be hereafter designated by either Party. Any notice to Customer pertaining to an Order Form may be made by Tango to the contact listed by Customer for such purpose in the applicable Order Form.
11.8 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
11.9 Counterparts. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the Parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format).
11.10 Force Majeure. Neither Party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, natural disasters (fire, storm, floods, earthquakes, etc.), a pandemic, acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any third party services, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
11.12 Construction. This Agreement shall be deemed to be the product of all of the Parties, and no ambiguity shall be construed in favor of or against any one of the Parties.