VERB MASTER SUBSCRIPTION AND SERVICES AGREEMENT
Last Updated: May 17, 2023
(v2023.1)
This Master Subscription and Services Agreement (“Agreement”) is effective as of the Order Form Effective Date set forth in the Order Form (the “Effective Date”) by and between Verb, LLC, a wholly owned subsidiary of Paycor, Inc. (“Verb”), and the Customer identified in the Order Form (“Customer”), individually a “Party” and collectively the “Parties”.
The Parties agree as follows:
1. DEFINITIONS
Capitalized terms shall have the meanings provided in this section or as specified in the body of the Agreement.
“Agreement” means this Master Subscription and Services Agreement, and unless the context requires otherwise, includes all Order Forms, and any addendums, exhibits or attachments to any of the foregoing.
“API” means application programming interface.
“Customer Data” means all electronic data or information submitted by Customer or User to the SaaS Platform.
“Disabling Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Documentation” means any proprietary information or documentation made available to Customer by Verb for use with the SaaS Platform or other Services, including any documentation available online through the SaaS Platform dashboard or otherwise.
“Order Form” means each Verb ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the Services ordered by Customer from Verb, sets forth the prices for the Services, and contains other applicable information, terms and conditions.
“Customer Success Services” means configuration, training, custom content and such other professional services as may be described in an Order Form or set forth in a Scope of Work attached to or which references this Agreement.
“SaaS Platform” means, collectively, the online, web-based applications and platform provided by Verb and ordered by Customer pursuant to this Agreement and as specified in one or more Order Form(s).
“SaaS Platform Term” means the time period set forth in an Order Form during which Customer may use the SaaS Platform.
“Scope of Work” means Verb’s scope of work attached to or which references this Agreement or is attached to an Order Form and details Professional Services to be performed by Verb.
“Service Capacity” means any usage limits in addition to Users described in an Order Form upon which the fees set forth in the Order Form are calculated.
“Services” means, collectively, the provision of the SaaS Platform and the Professional Services specified in one or more Order Form(s).
“SLA” means Verb’s Service Level Agreement attached to this Agreement as Exhibit A.
“User” means Customer employee or contractor users who are uniquely identified as authorized users of the SaaS Platform. Customer may permanently (i.e., not for a predefined temporary period) replace one User with another if the original User no longer has access to the SaaS Platform.
2. SERVICES
2.1. Provision of Services. Subject to the terms of this Agreement, Verb will use commercially reasonable efforts to provide Customer the Services pursuant to this Agreement and the relevant Order Form during the applicable SaaS Platform Term.
2.2. Third-Party Applications. Verb may offer Customer the ability to use third-party applications (“Third-Party Application”) in connection with the SaaS Platform. The use of a Third-Party Application by Customer with the SaaS Platform is subject to a separate agreement between Customer and the provider of the Third-Party Application. Further, the use of any such Third-Party Application in connection with the SaaS Platform will be subject to Customer and Verb agreeing to the same in an Order Form. Verb does not warrant or support such Third-Party Applications. If Customer chooses to use a Third-Party Application with the SaaS Platform, Customer grants Verb permission to allow the Third-Party Application and its provider to access Customer Data as required for the interoperation of that Third-Party Application with the SaaS Platform. Verb is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider.
3. RESPONSIBILITIES AND RESTRICTIONS
3.1. Verb Responsibilities. Verb will provide the SaaS Platform to Customer during the SaaS Platform Term in accordance with this Agreement.
3.2. Customer Responsibilities. Customer is responsible for all activity that occurs under Customer’s accounts by or on behalf of Customer. Customer agrees to (a) be solely responsible for all User activity, which must be in accordance with this Agreement and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the Verb obligations set forth in the Agreement) (c) obtain and maintain during the SaaS Platform Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify Verb promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.3. Restrictions. Customer will not (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the SaaS Platform or any Third-Party Application or third-party data or content contained therein, or (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.
3.4. Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or the United Kingdom (“UK”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU, UK or otherwise), the Parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or Order Form and become a part of this Agreement.
4. FEES AND PAYMENT
4.1. Fees. Customer shall pay all fees specified in all Order Forms hereunder (“Fees”) for the Services. Except as otherwise specified herein or in an Order Form, (a) Fees will be quoted and paid in United States dollars and (b) payment obligations are non-cancelable and Fees paid are non-refundable except as specified in Sections 8 and 10.5 below.
4.2. Additional Fees. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees per the terms of this Agreement, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Customer shall also reimburse Verb for all reasonable travel and living expenses incurred in the performance of Professional Services, provided that any material expenses shall be subject to approval in advance by Customer.
4.2. Invoicing and Payment. Verb will invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due upon receipt of the invoice.
Customer is responsible for providing Verb with complete, accurate and up-to-date billing and contact information.
4.3. Overdue Fees. If any Fees are not received from Customer by the due date, then at Verb’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees for the SaaS Platform or Professional Services are thirty (30) or more days overdue, Verb may, without limiting Verb’s other rights and remedies, suspend Professional Services and Customer’s use of the SaaS Platform until such amounts are paid in full.
4.5. Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify Verb in writing and provide sufficiently detailed support of any invoice dispute within ten (10) business days of Customer’s receipt of invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section shall be deemed to waive Customer’s obligation to pay any undisputed amounts in accordance with Section 4.2. (Invoicing and Payment).
4.6. Taxes. The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on Verb’s net income, property, or employee withholdings. Taxes shall not be deducted from the payments to Verb, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, Verb receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
4.7. Audit Rights. Verb shall have the right to audit Customer’s compliance with this Agreement at any time during the SaaS Platform Term. Customer shall cooperate following any reasonable request by Verb in connection with such audit. If Verb determines that Customer has allowed access to the Services other than as permitted under this Agreement or any Order Form or has otherwise violated any applicable terms hereof or thereof, and as a result additional Fees are owed to Verb, Verb shall invoice Customer for such discrepancies and such Fees shall be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies of Verb.
5. PROPRIETARY RIGHTS
5.1 Verb’s Ownership. Verb shall own and retain all right, title and interest in and to (a) the Services and SaaS Platform, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing, except as noted below (“Verb Intellectual Property”). Notwithstanding anything to the contrary, Verb shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies including, without limitation, information concerning Customer Data and data derived therefrom, and Verb will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Verb offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
5.2. Customer Ownership and Licenses. Customer owns all rights, title and interest in and to all Customer Data and (b) any information supplied by Customer to Verb as may be specified in any Order Form or Scope of Work (collectively, “Customer Materials”). Customer grants Verb a non-exclusive, non-transferable, royalty free, non-sublicensable (except as needed for the provision of Services or as set forth herein), worldwide right to access and use Customer Materials solely to provide the Services to Customer at Customer’s request. No other rights or implied licenses in Customer Materials are granted to Verb other than as expressly set forth herein.
6. CONFIDENTIALITY
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Discloser“) to the other Party (“Recipient“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information will include, but is not limited to, Customer Data and Customer Materials; Verb Confidential Information includes, but is not limited to, the SaaS Platform, information or technology used in connection with the Services, this Agreement and all Order Forms; and Confidential Information of each Discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
6.2. Protection of Confidential Information. The Recipient agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Discloser agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof. Except as otherwise permitted in writing by Discloser, Recipient will (i) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and (ii) limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein.
6.3. Protection of Customer Data. Without limiting the above, Verb will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except (a) in order to provide the Services, (b) to prevent or address service or technical problems in connection with support matters, or (c) as expressly permitted in writing by Customer, Verb will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Section 6.4. (Authorized Disclosure)).
6.4. Authorized Disclosure. If Recipient is compelled by law, regulation, or a court of competent jurisdiction to disclose any of Discloser’s Confidential Information, to the extent permitted by law, Recipient will promptly notify Discloser so that it may seek a protective order or other appropriate remedy. Recipient agrees to cooperate at Discloser’s expense in seeking such order or other remedy. If disclosure is ultimately required, Recipient will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under this Section. Each Party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.
6.5. Return of Confidential Information. Each Receiving Party will destroy or return to Disclosing Party all Confidential Information of Discloser that Recipient possesses upon the expiration or termination of this Agreement; provided, however, that to the extent that copies of Confidential Information are contained in Recipient’s off-site backup data storage archives and are not readily accessible for deletion, Recipient will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein.
7. WARRANTIES AND DISCLAIMERS
7.1 Verb Warranties. Verb warrants that (a) the SaaS Platform will perform substantially in accordance with the Documentation made available to Customer, (b) the functionality of the SaaS Platform will not be materially decreased during the SaaS Platform Term and (c) the Professional Services will be performed in a professional and workmanlike manner. Verb shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The SaaS Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Verb or by third-party providers, or because of other causes beyond Verb’s reasonable control, but Verb shall use reasonable efforts to provide notice in writing or by e-mail of any unscheduled maintenance. Notwithstanding the foregoing, if any Order Form has a SaaS Platform Term of more than twelve (12) months, in the event Verb determines to materially change or cease offering any material element of the Services, Verb may effect such change or cessation following reasonable notice thereof to Customer and the relevant Order Form shall be amended to reflect such change.
7.2. Breach of Warranties. For any breach of the foregoing warranties, Customer’s exclusive remedy will be as provided in Section 10.2. (Termination for Cause) and Section 10.5. (Effect of Termination).
7.3. Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and (c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement.
7.4. Disclaimers. VERB DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SAAS PLATFORM AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND VERB DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. INDEMNIFICATION
Verb shall hold Customer harmless from liability to third parties to the extent resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Verb is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Verb will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (a) not supplied by Verb, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Verb and not made by Verb, (d) combined with other products, processes, or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of and provided modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Verb to be infringing, Verb may, at its option and expense (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Services, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, VERB AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND VERB’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VERB FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VERB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Order Forms under this Agreement or (b) the termination of this Agreement in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, all rights granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Services. For avoidance of doubt, upon termination of any Order Form, the Services provided pursuant to such Order form shall cease and Customer shall stop using such Services.
10.2. Automatic Renewal. Subscriptions for the SaaS Platform commence on the “SaaS Platform Term Start Date” specified in the applicable Order Form and continue for the SaaS Platform Term, unless terminated earlier in accordance with the terms of this Agreement. The SaaS Platform Term will automatically renew for additional one year terms, at the then-current terms and conditions (except fees as set forth below), unless either Party gives the other Party written notice of non-renewal at least 60 days before the end of the then-current SaaS Platform Term. On renewal of the SaaS Platform Term, Verb may increase Fees up to the greater of (a) Verb’s then-current fees (if Customer’s original Fees were discounted), or (b) 10%.
10.3. Termination for Cause. A Party may terminate this Agreement or any applicable Order Form for cause: (a) upon thirty (30) days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period, (b) immediately for material violations of confidentiality obligations, or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
10.5 Effect of Termination. Upon termination of this Agreement: (a) Verb will immediately cease providing any applicable Professional Services, and deactivate and terminate access to the SaaS Platform, (b) Verb will refund to Customer a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination, and (c) Customer will within thirty (30) days promptly pay to Verb any and all unpaid amounts due under this Agreement. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Verb for the period before the effective date of termination.
11. PROFESSIONAL SERVICES AND SUPPORT
11.1. Availability of Customer Resources. Customer will make available to Verb certain of Customer personnel, business information and other relevant information as reasonably required by Verb in the performance of any Professional Services hereunder or as specified in any applicable Order Form or Scope of Work. Customer will ensure that competent personnel are available during normal working hours to provide information and other support to Verb while providing Professional Services. Customer acknowledges that the timeliness or provision of Professional Services may be dependent on such Customer’s personnel availability and cooperation.
11.2. Support. Verb will provide Customer the support services set forth in Exhibit B.
11.3. Compliance with Customer or Verb Rules. If applicable, while on the premises of the other Party for training or other services, each Party will take reasonable measures to have its personnel comply with the other Party’s reasonable rules and policies regarding safety, security, and conduct made known to such Party, and will at Customer’s request promptly remove from the project any of its personnel not following such rules and regulations.
12. DISPUTE RESOLUTION, GOVERNING LAW & NOTICES
12.1. Dispute Resolution, Governing Law. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to this Agreement will be brought in the state or federal courts located in the state where the defendant is located and the Parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
12.2. Manner of Giving Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the business day after it is sent, if sent for next business day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Verb will be addressed to the CEO at billing@goverb.com, or in the case of Customer, sent to the address and contact set forth on the Order Form, or as designated from time to time in writing by the Parties. Billing-related notices will be addressed to the relevant billing contact designated by Customer on the Order Form.
12.3. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.4. Attorneys’ Fees. In any action or proceeding to enforce this Agreement, Verb will be entitled to recover costs and attorneys’ fees.
13. GENERAL PROVISIONS
13.1. No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any Order Form and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in an Order Form.
13.2. Press Release and References. The Parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date. Customer agrees to grant Verb the right to list Customer on marketing, sales and promotional materials. Customer agrees to reasonably cooperate with Verb to serve as a reference account upon request.
13.3. Subscription Service Analyses. Verb may compile statistical and other information related to the performance, operation and Customer’s use of the SaaS Platform, and use and share data from the SaaS Platform environment in aggregated form for any lawful purpose including, without limitation, security and operations management, to create statistical analyses, and for research and development purposes (collectively the “Service Analyses”). Service Analyses will not incorporate any information, including Customer Data, in a form that could serve to identify Customer or an individual. Verb retains all intellectual property rights in Service Analyses.
13.4. Force Majeure. Neither Party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, pandemic, failure of third-party networks or services or the public Internet, power outages, labor disputes or governmental demands or restrictions.
13.5. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
13.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
13.7. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.8. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.9. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Verb may assign this Agreement in its entirety (including all Order Forms), without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement pertains. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
13.10. General. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement or any Order Form will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic transmission), shall be deemed an original, and both of which shall constitute one and the same agreement.