(Last updated: November 2016)
Certify, Inc., ("Certify") has developed certain technology, including a web-based and mobile application based software product called Certify™, to provide a service for expense tracking and management via the Internet. The Client (defined below) desires to subscribe to the Certify Service (defined below) and Certify desires to provide access to the Certify Service to Client on the terms and conditions set forth herein.
Each party represents and warrants that the person signing below on its behalf is a representative or agent of the company and has the authority to bind the company to the terms and conditions of this Agreement. For purposes of this Agreement the term "Client" means such company and all of its directors, subsidiaries, managers, officers, employees and agents.
Certify is willing to provide access to the Certify Service and related Documentation (defined below) to Client only on the condition that Client accepts all of the terms and conditions set forth in this Agreement. By signing this Agreement, Client acknowledges that Client has read this Agreement, understands it, and agrees to be bound by it.
In addition to those terms defined elsewhere in this Agreement, the following words and phrases in initial capital letters shall have the meanings set forth below:
1.1 "Certify Service" or "Service" means the online expense tracking and management service delivered by Certify to Client using the Certify System.
1.2 "Certify System" means the technology, including the hardware and software, used by Certify to deliver the Certify Service to Client in accordance with this Agreement.
1.3 "Content" means all content located on or contained in the Certify website or any other website owned or controlled by Certify.
1.4 "Data" means all data, materials or information provided by Client, Client's Users, employees, or any third party on Client's behalf in connection with Client's use of the Certify Service.
1.5 "Documentation" means the online materials, specifications or forms provided by Certify that describe the features, functionality or operation of the Certify Service and/or Certify System.
1.6 "Password" means the unique password assigned to each User for access to the Certify Service and the Certify System.
1.7 "Users" means Client and/or Client's employees, representatives, consultants, contractors or agents who are authorized to use the Certify Service on Client's behalf pursuant to Client's acceptance of this Agreement and Client's payment of the appropriate license fees covering each User's access.
2. Grant of License.
During the Term of this Agreement and subject to the terms of this Agreement, Certify hereby grants to Client (and any authorized Users) a non-sublicensable, non-transferable, non-exclusive right and license to access and use the Certify Service, in accordance with the Documentation and solely for Client's internal business operations.
3. Client's Use of the Certify Service
3.1 Access and Security Guidelines. Client will choose or be provided with Passwords for each of its licensed User(s) on the Certify system. Client will be responsible for ensuring the security and confidentiality of its Passwords. Each Password may be assigned to and used by only one individual User. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Certify Service, and will notify Certify promptly of any such unauthorized use. Client shall not knowingly interfere with or disrupt the integrity or performance of the Certify Service or the data contained therein. Client shall, at all times, comply with all applicable laws in its use of the Certify Service.
3.2 Client Data. Client is solely responsible for its Data and shall not knowingly provide, post or transmit any Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Certify may take remedial action if Client Data violates this Section 3.2; however, Certify is under no obligation to review Client Data for accuracy or potential liability.
3.3 Restrictions on Use.
3.3 (a) Client is responsible for all activities that occur under its User accounts. Client will not, and will not attempt to (directly or indirectly): (a) reverse engineer, disassemble or decompile any component of the Certify System or Certify Service or otherwise attempt to discover any source code, underlying ideas or algorithms contained in the Certify System or Certify Service; (b) interfere in any manner with the operation of the Certify Service or the Certify System; (c) allow a third party to access the Certify Service or Certify System using Client's User Accounts; (d), distribute, sell, resell, sublicense, assign or otherwise transfer to a third party any of its rights under this Agreement; (e) use the Certify Service or Certify System for the benefit of a third party, for timesharing or to operate a service bureau; (f) copy, modify, translate or make derivative works based on any part of the Certify System, Certify Service or Documentation; (g) create Internet "links" to or from the Certify Service or Certify System, or "frame" or "mirror" any of Certify's content which forms part of the Certify Service (other than on Client's own internal intranets); (h) remove, cover, alter or obfuscate any logos, trademarks, internet links, confidentiality or proprietary rights notices, or any other notices or markings placed on or displayed by the Certify System, Certify Service or the Documentation; (i) publish or disclose to third parties the results of any evaluation or benchmark test run on the Certify System or Certify Service without Certify's prior written consent; or (i) otherwise use the Certify Service or Certify System in any manner that exceeds the scope of use permitted under this Agreement.
3.3 (b) Client shall not and shall not allow any Users to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan on the Certify Service or Certify System without Certify's prior written consent, or (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the Certify Service or Certify System.
3.3 (c) Client may not use the Certify Service or Certify System for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list. Client agrees not to transmit, or permit Users to transmit, through the Certify Service or Certify System, any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Client agrees to only use the Certify Service and Certify System for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include, but are not limited to, storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm.
3.4 System Availability
Certify does not warrant that the Service will be uninterrupted, timely or error free. Certify has established internal system availability targets of 99.9% uptime or greater. Certify maintains a system maintenance window on Sunday mornings from 2am – 4am Eastern Time and will make every effort to schedule all necessary maintenance to occur within this window. Please review the Certify Service Level Agreement for details.
4.1 Certify Technology. Client acknowledges and agrees that Certify or its suppliers retain all right, title and interest in and to (i) the Certify System, Certify Service, Documentation and all other software, materials, formats, interfaces, information, content and proprietary information and technology used by Certify or provided to Client in connection with the Certify Service, (ii) all modifications and/or enhancements to the Certify System or Certify Service, (iii) the System Content, (iv) all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or learned as a result of Client's use of the Certify Service, (v) all transactional and performance data related to the use of the Certify System and the Certify Service which Certify may collect, use and disclose for its business purposes (including for purposes of software use optimization and product marketing) provided that such use does not reveal Client's or any User's identity, any of Client's Confidential Information, or any other personally identifiable information that belongs to Client; (vi) all custom developed documents, designs, computer programs, computer documentation and other tangible materials created or prepared by Certify at Client's request pursuant to a separate, written statement of work; and (vii) the Certify logo, and the product and service names associated with the Certify Service or otherwise contained on the Certify website, all of which are trademarks of Certify (all of the foregoing being referred to herein collectively as, the "Certify Technology"). Client acknowledges and agrees that the Certify Technology is comprised of intellectual property rights owned by or licensed to Certify all of which are protected by intellectual property laws.
4.2 Client's Data. Client retains all right, title and interest in and to its Data. Client grants to Certify all necessary licenses in and to such Data solely as necessary for Certify to provide the Certify Service to Client or as required by law. Client will be solely responsible for providing all Data required for the proper operation of the Certify Service. Except as described in Section 4.1 above, Certify will not knowingly use or access any of Client Data unless authorized to do so by Client and, in such circumstances, Certify will access and use Client Data only as required to perform services on Client's behalf. On occasion, Certify may query data across all customers in aggregate to derive average spend amounts and metrics for benchmark reporting purposes. In all such cases, Certify will anonymize Client Data and in no event will Client Data be identifiable. When such benchmarking reports are derived, Client will receive access to this data for its internal use.
5. Term and Termination.
5.1 Term. This Agreement will commence upon execution of this Agreement and will continue in effect in perpetuity unless and until terminated with ninety (90) days' advance written notice to the non-terminating party, or otherwise pursuant to these terms (the "Term").
5.2 Termination. Either party may terminate this Agreement and Client's subscription to the Certify Service at any time and for any reason or no reason at all, in accordance with this Section 5.2 and/or Section 5.1. Client may terminate this Agreement and its subscription by providing written notice to Certify. The only circumstances in which Client will be entitled to any refund of fees paid for its subscription to the Certify Service upon termination of this Agreement are as follows: (a) in accordance with Section 7.1(b) below; or (b) Certify will refund to Client any unearned fees in the event Certify unilaterally terminates this Agreement and Client's subscription to the Certify Service without cause. As used in the previous sentence, "unearned fees" means all license fees actually paid by Client for access to the Certify Service for the period in which this Agreement is terminated, prorated to the number of days, or the number of unused prepaid expense reports remaining in such month after termination.
5.3 Obligations After Termination. Upon termination of this Agreement for any reason: (a) any amounts owed to Certify under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other, or destroy, all Confidential Information and other property of the other party in its possession or under its control. Certify agrees that upon any termination of this Agreement, Certify will allow Client to access, without the right to modify, enhance or add to, Client's Data for ninety (90) days after termination. Any such termination shall not limit any other rights or remedies which Certify may hold, all of which are hereby reserved.
6.1 Client shall pay all invoices from Certify within 30 days from the date of Invoice. Client shall pay all fees or charges to its account in accordance with the fees, charges, and billing terms as defined in this Agreement. Except as otherwise specifically provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable. Client may add Certify Services by executing an additional written Sales Order Form. All pricing terms are confidential, and Client agrees not to disclose them to any third party.
6.2 Certify charges and collects in advance for the total Certify cost for a subscription to the Certify Service, as detailed in this Agreement. Certify will invoice Client for its monthly or annual service charges. Fees for other services will be charged on an as-quoted basis. Certify collects Sales tax for all locations within the United States that require such tax based upon State and Local Sales tax laws. Outside of the United States, Certify's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and to the extent not exempt, Client will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Certify's income. Client agrees to provide Certify with complete and accurate billing and contact information.
6.3 In addition to any other rights Certify may have, Certify reserves the right to suspend or terminate this Agreement and Client's access to the Certify Service if payment for undisputed fees is not paid to Certify within the time periods provided for herein. If Client or Certify initiates termination of this Agreement, Client will be obligated to pay the balance due on its account. Client agrees and acknowledges that Certify has no obligation to retain its Data and that such Data may be irretrievably deleted if Client's account is ninety (90) days or more delinquent.
6.4 The Certify Pricing as described in this Agreement shall be maintained for the initial twenty-four (24) months after the effective date of this Agreement. Thereafter, Certify may increase the price however no greater than five percent (5%) per annum, and shall provide Client with 90 days advanced written notice of its intent to do so.
7. Warranty; Disclaimer of Warranties; Limitation of Liability.
7.1 Certify Warranty. Certify warrants that the Certify Service will perform substantially in accordance with the Electronic Documentation (as provided in the Certify Support section of the software) during the Term of this Agreement (the "Limited Warranty"). In the event of a breach of the Limited Warranty, Certify's entire liability and Client's exclusive remedy shall be, at Certify's option, either (a) correction of the Certify Service so that it performs substantially in accordance with the Documentation, or (b) return to Client the Fees actually paid by it for the prior twelve (12) months immediately preceding Client's written notice to Certify specifying the breach of the Limited Warranty in detail, and cancellation of its subscription and this Agreement.
7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE, THE CERTIFY SERVICE, THE CERTIFY SYSTEM AND ALL OTHER DATA, MATERIALS AND DOCUMENTATION PROVIDED OR MADE AVAILABLE BY CERTIFY IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. CERTIFY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CERTIFY DOES NOT WARRANT THAT THE CERTIFY SERVICE WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CERTIFY SERVICE IS DONE AT CLIENT'S OWN RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM CLIENT'S USE OF THE CERTIFY SERVICE.
7.3 Limitation of Liability. EXCEPT AS PROVIDED FOR HEREIN TO THE CONTRARY, EITHER PARTY'S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, THE CERTIFY SYSTEM OR THE SERVICE UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE STRICTLY LIMITED TO THE FEES ACTUALLY PAID BY CLIENTTO CERTIFY FOR THE CERTIFY SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. ALL CLAIMS BY EITHER PARTY WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. EXCEPT AS PROVIDED FOR HEREIN TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST OR INACCURATE DATA, OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, OR LOSS OF USE OF ANY INFORMATION OR DATA OF THE CERTIFY SYSTEM OR CERTIFY SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIMITATIONS ON AMOUNT AND/OR TYPES OF DAMAGES SHALL NOT APPLY TO CAUSES OF ACTION OR DAMAGES CAUSED OR CREATED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY, OR, THE LOSS OR MISUSE OF CONFIDENTIAL INFORMATION BYEITHER PARTY OR, BREACH OF CERTIFY'S INDEMNITY OBLIGATIONS UNDER SECTION 8.
8.1.1 Indemnity by Certify. Certify will defend, indemnify and hold Client harmless from all claims, losses, demands, liabilities, damages or judgments awarded by a court of appropriate and final jurisdiction, or any settlements, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees), arising out of (i) any third party claims that the Certify Service or the Certify System infringes or misappropriates any presently existing United States patent, copyright, trademark or trade secret held by such third party; (ii) a breach by Certify of any of its obligations, representations, warranties or covenants contained in this Agreement; provided that and so long as: (a) Client uses the Certify Service and the Certify System in accordance with the Documentation; (b) Client has adhered to its obligations under this Agreement; and (c) Client promptly notifies Certify in writing of any such claim, suit or proceeding and permit Certify to control the defense or settlement thereof and cooperate in the defense or settlement thereof.
8.1.2 Certify will have the option, at its expense, to employ counsel of its choosing to defend against such claim and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon Client may be affected without Client's prior written consent. Client shall have the option to be represented by counsel at Client's own expense.
8.1.3 Client, at Certify's expense, shall cooperate fully in such actions, making available employees, books and records reasonably necessary for the defense of such claim. If Certify refuses to defend or does not make known to Client its willingness to defend against such claim within thirty (30) days after it receives notice thereof, then Client shall be free to investigate, defend, compromise, settle or otherwise dispose of such claim in Client's best interest and incur other costs in connection therewith, all at the expense of Certify.
8.1.4 Should Client be permanently enjoined by a court of competent jurisdiction from continued use of the Certify Service because it infringes or misappropriates a third party's presently existing United States copyright, patent, trademark or trade secret, Certify will (at Certify's discretion): (i) obtain the appropriate licenses for Client to continue to use the Certify Service; (ii) provide Client with a non-infringing service equivalent to the Certify Service in terms of functionality and performance; or (iii) terminate this Agreement and refund to Client the amount of the Fees actually paid by Client for the prior twelve (12) months of access to the Certify Service.
8.1.5 Certify will have no obligation under this Section 8.1 with respect to any claim of infringement or misappropriation of a third party's proprietary rights to the extent such claim arises as a direct or indirect result of (a) any use of the Certify Service or Certify System in a manner other than as authorized in this Agreement; (b) any use of the Certify Service or Certify System in combination with other products, equipment, devices, software, systems or data not supplied by Certify to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the Certify Service or Certify System made by any party other than Certify if such infringement or misappropriation would not have occurred without such alteration, modification or customization. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CERTIFY AND CLIENT'S EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.
8.2 Indemnity by Client. Client shall indemnify, defend and hold Certify harmless from all claims, losses, demands, liabilities, judgments, or damages awarded by a court of appropriate and final jurisdiction, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees) arising from or relating to (a) use of the Certify Service or Certify System (including claims by any of Client customers or business partners) by Client or any third party using a Password assigned to Client; (b) a breach by Client of any of Client's obligations, representations, warranties or covenants contained in this Agreement; or (c) any claim alleging that Client's Data, or the use of Client's Data pursuant to this Agreement, infringes, misappropriates or violates the intellectual property or any other rights of a third party or otherwise causes harm to a third party.
9.1 Confidential Information. During the Term of this Agreement, each party will have access to certain information and materials concerning the other party's technology, business plans, employees, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). Confidential Information of Certify shall include, without limitation, information specifically designated as confidential, the features and functions of the Certify Service and Certify System that are not available to the general public (including screen shots of the same), future product plans, the Documentation, performance and security test results (whether conducted by Certify or Client), and any other proprietary, financial or business information supplied to Client by Certify or learned by Client in connection with this Agreement or Client's subscription to the Certify Service. Client's Confidential Information shall include, without limitation, Client's Data, Client's Personal Information, information specifically designated as confidential, business plans, and any other proprietary, financial, or business information supplied by Client to Certify or learned by Certify in connection with this Agreement or Client's subscription to the Certify Service. Except as otherwise expressly authorized under this Agreement, the receiving party hereunder: (i) shall not use any Confidential Information of the other party except as required to fulfill its responsibilities hereunder; (ii) shall not disclose the other party's Confidential Information to any third party; (iii) shall not be given any right, title, interest or license in or to any Confidential Information of the other party; and (iv) shall use all reasonable means to protect and maintain the secrecy of the other party's Confidential Information. Notwithstanding the foregoing, "Confidential Information" shall not include either party's information which is: (a) generally available to the public; (b) already in the receiving party's possession as of the commencement of this Agreement without restriction; (c) except as it relates to third party service providers of Client, received by the receiving party from a third party not in violation of an obligation of confidentiality; (d) developed independently by either party without reference to the other party's Confidential Information; (e) the subject of the disclosing party's written consent authorizing disclosure; or (f) required to be disclosed by the receiving party by applicable law or legal process, provided that the receiving party immediately notifies the disclosing party so that the disclosing party may take steps to limit or prevent its disclosure. In the event of a breach of this Section, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party will be impossible to calculate and would therefore be an inadequate remedy. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary, preliminary and permanent injunctive relief against the breaching party, its officers, managers, directors, employees and agents, in addition to such other rights and remedies to which it may be entitled at law or in equity.
9.2 Personal Information. Certify will not sell, share or rent Client's personal information to any third party or use Client's email address for unsolicited mail. Any emails sent to Client by Certify will be in connection with Client's subscription to the Certify Service or other services offered by Certify. Personal Information shall be defined as any information related to Client or Client's employees' names, contact information, bank account information, employee identification number, log in ID, Passwords, or credit card information.
10.1 Log Files. Certify uses IP addresses to analyze trends, administer the Certify website, track users' movements, and gather broad demographic information for aggregate use. IP addresses are not linked to any personally identifiable information. In addition, for purposes of systems administration, detecting usage patterns and troubleshooting, our web servers automatically log standard access information including browser type, access times/open mail, URL requested, and referral URL. Such information is not shared with third parties and is used only within Certify on a need-to-know basis. Any individually identifiable information related to this data will never be used in any way other than as authorized in this Agreement without Client's express permission.
10.3 Links. Certify does not monitor or review the content of any third party websites which are linked to or from the Certify website. Opinions expressed or material appearing on such third party websites are not necessarily shared or endorsed by Certify, and Certify should not be regarded as the publisher of such opinions or material. Certify is not responsible for the privacy practices, or content, of these third party websites. Certify encourages its users to be aware when they leave the Certify website and to read the privacy policies of any third party websites they enter. Client should evaluate the security and trustworthiness of any other website connected to the Certify website or accessed through this website itself, before disclosing any personal information to them. Certify will not accept any responsibility for any loss or damage in whatever form or manner, howsoever caused, resulting from Client's disclosure of personal information to third parties.
10.4 Communication. Certify maintains several different email addresses for queries on different topics. Such email addresses and other Certify contact information can be found on the Contact Us link located on the Certify website or via Certify literature.
10.5 Notification of Changes. Certify reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Certify Service at any time, effective upon posting of an updated version of this Agreement or the applicable policy on the Certify website or Certify Service. You are responsible for regularly reviewing this Agreement and any applicable policies. Continued use of the Certify Service after any such changes will constitute Your consent to such changes. If there are any changes in how Certify uses Your personally identifiable information, it will notify You by email.
10.6 Force Majeure. Neither party shall be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, acts of God or of the public enemy, domestic or foreign governmental acts, labor, fire, flood, epidemic, strikes, and/or freight embargoes.
10.7 General. This Agreement is governed by the laws of the State of Delaware, without reference to its conflicts of laws principles. This Agreement sets forth the entire understanding and agreement between the parties and supersedes any prior or contemporaneous discussions, understandings, orders, requests or statements regarding the subject matter hereof, except for any additional payment terms which may be contained on a related Sales Order Form. No provision of this Agreement shall be modified, supplemented or waived without the express written authorization of both parties. Either party may assign not less than all of its rights and obligations under this Agreement in connection with a change of control to such party's successor. This Agreement shall be binding upon and inure to the benefit of Certify's and Client's successors and permitted assigns. Client agrees that Certify is providing these Services as an independent contractor and nothing herein shall be deemed to constitute a partnership, joint venture or other business collaboration. In the event of a dispute between Certify and Client where the parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to a court of competent jurisdiction in order to protect its rights and interests. Payment of expenses, including attorneys' fees, shall be assessed by the court based on the extent to which each party prevails. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing.
10.8 Survival. Sections 1, 3, 4, 5.3, 7.2, 7.3, 8, 9 and 10 of this Agreement and all of Client's payment obligations under this Agreement shall survive the termination or expiration of this Agreement for any reason.