1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
1.1 “Affiliate” means, with respect to a Person, any other Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, such Person.
1.2 “Aggregated Data” means data generated by aggregating Customer Content with other data so that results are non-personally identifiable with respect to Customer-Authorized Users or other employees or independent contractors of Customer and its Affiliates.
1.3 “Control” (including the terms “Controlled by” and “under common Control with”) means, with respect to a Person, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.
1.4 “Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
1.5 “Customer Content” means the information and content Customer, its Affiliates and Customer-Authorized Users create and/or distribute using the Welcome Services.
1.6 “Customer-Authorized User” means an employee or independent contractor of Customer or its Affiliate in each case authorized by Customer or its Affiliate to access and use the Welcome Services in connection with the employment or engagement of such individual by Customer or its Affiliate.
1.7 “Order Form” means the Welcome-generated order documentation executed by Welcome and Customer through the Welcome Services that designates the services and products purchased by Customer, which forms apart of this Agreement.
1.8 “Person” means an individual or a corporation, partnership, limited liability company, firm, association, trust, unincorporated organization or other similar entity.
1.9 “Support Services” means the delivery of front-end support and pre- and post-sales deployment services to Customer-Authorized Users by telephone, email, in-person meetings or other methods and the training of Customer-Authorized Users, in each case relating to the use of the Welcome Services.
1.10 “Third-Party Services” means any services used in connection with the Welcome Services that are hosted or provided by a Person other than Welcome or Customer, whether linked to, integrated with, or connected to the Welcome Services by Customer or Welcome.
1.11 “Welcome Services” means the cloud-based services purchased, ordered, registered, or provided to Customer or its Affiliates, and in each case made available by Welcome under this Agreement. Services may include Free Services.
2. Customer Rights and Obligations
2.1 Grant of Rights. Subject to Customer’s compliance with this Agreement, Welcome hereby provides Customer a non-exclusive, non-transferable right to access and use the Welcome Services during the Term. Welcome shall provide Customer with access credentials to allow Customer to access the Welcome Services. Customer is responsible and liable for all authorized and unauthorized uses of the Welcome Services resulting from access or other use of Customer’s access credentials, regardless of whether the activities are authorized by Customer or undertaken by Customer, its employees, or a third party. The rights granted to Customer under this Section 2.1 shall extend to Customer’s Affiliates, provided that Customer shall be liable to Welcome for any action or omission of an Affiliate as if such action or omission were made by Customer.
2.3 Suspension of Welcome Services. Notwithstanding anything to the contrary in this Agreement, Welcome may temporarily suspend Customer’s access to any portion or all of the Welcome Services if: (a) Welcome reasonably determines that (i) there is a threat or attack on the Welcome Services; (ii) Customer’s use of the Welcome Services disrupts or poses a security risk to the Welcome Services or to any third party; (iii) Customer is using the Welcome Services for fraudulent or illegal activities or in any way that could subject Welcome or any third party to liability; (iv) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Welcome’s provision of the Welcome Services to Customer is prohibited by applicable law; (b) any vendor of Welcome has suspended or terminated Welcome’s access to or use of any Third-Party Services or products required to enable Customer to access the Welcome Services; or (c) Customer is in breach of any of its obligations under this Agreement. Welcome shall use commercially reasonable efforts to provide notice of any such suspension to Customer and to provide updates regarding resumption of access to the Welcome Services. At Customer’s request, Welcome shall use commercially reasonable efforts to resume providing access to the Welcome Services as soon as reasonably possible after the event giving rise to the suspension is cured. Welcome will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of such a suspension. If Customer’s account is suspended under Sections 2.3(a) or 2.3(c), Customer remains responsible for all fees and charges incurred during the period of suspension.
2.5 Changes to the Welcome Services. Welcome may change or discontinue any of the Welcome Services from time to time to comply with applicable law or to maintain or enhance the Welcome Services.
2.6 Access Credentials. Access credentials are for use only by Customer and by Customer-Authorized Users, in each case in connection with Customer’s use of the Welcome Services, and Customer may not sell, transfer, share, or sublicense access credentials to any other Person, or permit any other Person to do so. Customer shall maintain the confidentiality of the access credentials and may not transfer them to or allow them to be used by any third party, other than by Customer-Authorized Users in connection with the use of the Welcome Services. If Welcome believes access credentials have been compromised or misused, Welcome may change any or all access credentials or suspend the affected account, as provided in Section 2.3.
2.7 Compliance. Customer shall be solely responsible for complying with all applicable laws, and obtaining and maintaining all licenses and consents that are necessary for Welcome to receive, collect, process, store, and transmit the Customer Content and provide the Welcome Services.
2.8 Fees; Taxes. In consideration of Welcome’s provision of the Welcome Services, Customer shall make payments to Welcome in accordance with the terms set forth on the Order Form without setoff, counterclaim, withholding, or deduction. If Customer fails to make any payment when due, without limiting Welcome’s other rights and remedies: (i) Welcome may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Welcome for all reasonable costs incurred by Welcome in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Welcome may suspend Customer’s access to any portion or all of the Welcome Services until such amounts are paid in full. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Welcome’s income.
3.1 General. Welcome will provide support to Customer and Customer-Authorized Users through Welcome’s generally available online ticketing and support system. Welcome will provide the Support Services during Welcome’s normal business hours, Monday to Friday, except holidays, unless otherwise stated in the Order Form or other written support agreement entered into by Welcome and Customer. Welcome will respond to Customer support inquiries or requests within two (2) business days, unless otherwise stated in the Order Form or other written support agreement entered into by Welcome and Customer. Additional support agreements and capabilities are available for purchase by Customer and may be specified in the Order Form.
3.2 Updates; Maintenance. Welcome will provide Customer with each modification, error correction, bug fix, new release or other update (each an “Update”) made generally available by Welcome to customers of the Welcome Services during the Term. In the event Welcome, in its sole discretion, makes available any Update to Customer, such Update shall be deemed to be part of the Welcome Services hereunder and shall be subject to the terms and conditions of this Agreement. Except as expressly provided in this Section 3, or as may otherwise be provided in an Order Form or written support agreement entered into by Welcome and Customer, Welcome is under no obligation to support the Welcome Services in any way, nor to provide any Update to or for the Welcome Service. Welcome Services may be inaccessible from time to time due to planned or unplanned maintenance, or due to unavailability of third-party sites or servers.
4. Proprietary Rights
4.1 General. As between Welcome and Customer, Welcome retains all right, title and interest, including, without limitation, all intellectual property rights, in and to the Welcome Services. Customer shall not take any action to jeopardize, limit or interfere in any manner with Welcome’s ownership of and rights with respect to the Welcome Services. Customer shall have only those rights in or to the Welcome Services granted to it pursuant to this Agreement.
4.2 Feedback. Notwithstanding anything to the contrary in this Agreement, if Customer provides any ideas, suggestions or recommendations to Welcome (“Feedback”), Welcome is free to retain, use and incorporate such Feedback in Welcome’s and its Affiliates’ products and/or services, without payment of royalties or other consideration to Customer. Customer hereby irrevocably assigns to Welcome all right, title, and interest in such Feedback and any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback and agrees to provide any assistance Welcome reasonably requires, at Welcome’s expense, to document, perfect, and maintain Welcome’s rights in the Feedback.
5. Customer Content and Data Ownership
5.2 Acknowledgements. Customer acknowledges that Welcome does not monitor the Customer Content or the content third parties create and/or distribute using the Welcome Services. Customer acknowledges that Welcome has no responsibility (or related liability) for backing up any Customer Content and that, following expiration or termination of this Agreement, Customer may no longer have access to Customer Content.
5.3 Aggregated Data. Customer hereby grants to Welcome a worldwide, non-exclusive, transferable, sublicensable, royalty-free, fully paid-up, perpetual, irrevocable right and license to anonymize, aggregate, and create the Aggregated Data and acknowledges that Welcome may compile, use and disclose the Aggregated Data to analyze, improve, support and operate the Welcome Services and otherwise for any business purpose, during and after the Term, including without limitation to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by Customer and other Welcome customers and prospects. Customer hereby unconditionally and irrevocably grants to Welcome an assignment of all right, title, and interest in and to the Aggregated Data, including all intellectual property rights relating thereto.
5.5 Candidate and Employee Terms and Content. To the extent that Customer provides employment offers to prospective candidates or total rewards summaries to employees, Customer takes sole responsibility for ensuring that necessary and appropriate information, numbers, disclosures, financial terms and employment terms for each employment offer and total rewards dashboards are complete and accurate. Welcome makes no representations or warranties and takes no responsibility for any employment offers or total rewards summaries (or any information submitted by Customer in connection therewith) that are created, viewed, rejected or accepted.
6. Free Services. Welcome may make available certain features, technologies, and services that are free for a trial period, for evaluation purposes, or not yet generally available, including, but not limited to, any products, services, or features labeled “beta”, “preview”, “trial”, “pre-release” or “evaluation”, and any related materials (“Free Service(s)”), which shall be deemed to be Welcome Services, subject to this Agreement. The Free Services may be prerelease products with prerelease code not at the level of performance or compatibility of a final, generally available offering. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FREE SERVICES MAY NOT OPERATE CORRECTLY, MAY CONTAIN ERRORS THAT AFFECT THE CORRECT PROCESSING AND DISPLAY OF COMPENSATION AND OTHER INFORMATION RELATING TO CUSTOMER-AUTHORIZED USERS, AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO FIRST COMMERCIAL SHIPMENT OR WITHDRAWN. Welcome may for any or no reason terminate Customer’s access to Free Services or any part thereof, without prior notice. Welcome will not be liable for any such termination, nor have any other liability with respect to Free Services, which Customer uses at its own risk. Notwithstanding anything to the contrary in this Agreement, after suspension or termination of Customer’s access to or use of any Free Service for any reason, (a) Customer will have no further right to access or use the applicable Free Service, and (b) Customer Content used in the applicable Free Service may be deleted or inaccessible.
7. Confidential Information
7.1 Confidential Information Definition. From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that is marked, designated or otherwise identified as “confidential” or that is provided under circumstances indicating that it is confidential or proprietary, or otherwise should reasonably be understood by the recipient to be confidential or proprietary because of the nature of the information or material itself (collectively, “Confidential Information”). Except as expressly permitted by the terms of this Agreement, each party shall: (a) hold any and all Confidential Information it obtains in confidence and use and permit the use of Confidential Information solely for the purposes of this Agreement; (b) disclose the Confidential Information only to those of its and its Affiliates’ employees and contractors with a need to know such Confidential Information solely in order to effectuate this Agreement and who are under a legal, contractual, or professional ethical obligation to keep it confidential as least as protective as this Agreement; (c) notify the other party promptly of unauthorized disclosure or use and reasonably cooperate with the other party to protect all proprietary rights in and ownership and confidentiality of its Confidential Information; and (d) implement and maintain commercially reasonable security measures and safeguards designed to prevent the unauthorized disclosure or use of the Confidential Information of the other party.
7.2 Exceptions. The foregoing obligations do not apply to information that: (a) is in or enters the public domain without breach of this Agreement; (b) the receiving party receives from a third party without restriction on use or disclosure and without breach of a nondisclosure obligation; (c) the disclosing party designates in writing as non-confidential; or (d) the receiving party knew before receiving such information from the disclosing party or develops independently without reference to the disclosing party’s Confidential Information, as reflected by documentary evidence.
7.3 Required Disclosures. Neither party will be considered to have breached its obligations by disclosing Confidential Information of the other party in accordance with, and to the extent required by, applicable law or to satisfy any lawful request by a competent governmental body having competent jurisdiction over the receiving party, provided that, promptly upon receiving any such request and to the extent that it may legally do so, such party so notifies the other party in writing, and if possible, such party shall provide the other party notice of not less than five (5) business days before the required disclosure. The receiving party must use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the other party to contest, otherwise oppose, or seek to limit such disclosure and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The parties must cooperate with each other regarding such measures. Notwithstanding any such required disclosure, a party’s obligations hereunder with respect to the Confidential Information so disclosed remain in full force and effect.
7.4 Equitable Relief. Any use or disclosure of the disclosing party’s Confidential Information, other than as specifically provided for in this Agreement and other written agreements between Welcome and Customer, may result in irreparable harm and damage to the disclosing party. In the event of use or disclosure of such Confidential Information by the receiving party, other than as specifically provided for in this Agreement, the disclosing party may be entitled to, in addition to any other rights available to it, the right to obtain temporary or permanent injunctive relief, including specific performance of the confidentiality obligations agreed to herein, without posting bond, or making any showing of actual damage or inadequacy of legal remedy.
8. Disclaimer of Warranties. THE WELCOME SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WELCOME AND ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, EXPRESSLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE WELCOME SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WELCOME AND ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, MAKE NO WARRANTY THAT (A) THE WELCOME SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE WELCOME SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WELCOME SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY WELCOME SERVICES, INFORMATION, DATA OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE WELCOME SERVICES WILL MEET CUSTOMER’S EXPECTATIONS; OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
9. Limitation of Liability. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, IN NO EVENT SHALL WELCOME, INCLUDING ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND WELCOME’S AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS BE LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, SUSPENSION OF SERVICES, DISCONTINUATION OF SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGE, AND COSTS, EXPENSES, AND PAYMENTS, ARISING FROM OR RELATING TO CUSTOMER’S USE OF OR INABILITY TO USE THE WELCOME SERVICES. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER SUCH DAMAGES ARISE OUT OF CONTRACT, TORT, OR OTHER LIABILITY, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WELCOME WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE AGGREGATE LIABILITY OF WELCOME AND ITS AFFILIATES AND LICENSORS UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER ACTUALLY PAYS WELCOME UNDER THIS AGREEMENT FOR THE WELCOME SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE.
Welcome does not exclude or limit in any way its liability to Customer where it would be unlawful to do so. This includes liability for death or personal injury caused by Welcome’s negligence or the negligence of Welcome’s employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
10. Indemnification. Customer shall indemnify, defend, and hold harmless Welcome, its Affiliates, and their respective officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (including reasonable attorneys’ fees) of any kind, arising from or relating to (a) Customer’s use or misuse of the Welcome Services, (b) Customer’s breach of this Agreement, (c) Customer’s violation of any rights of a third party or (d) any claims by an employee or independent contractor of Customer or its Affiliates, or any candidate for employment or engagement, arising from or relating to the inaccuracy or incompleteness of any information made available to such employee, independent contractor or candidate by or through the Welcome Services, including, without limitation, the inaccuracy or incompleteness of any information relating to the actual or proposed compensation of, or equity ownership by, such employee, independent contractor or candidate.
11. Modifications to the Agreement. Welcome may modify this Agreement or any policies at any time by posting a revised version on the Welcome website and providing at least one-hundred twenty (120) days’ notice of the same (except in cases where such changes required by law, in which case Welcome will provide reasonable notice). The modified terms will become effective upon posting or, if Welcome provides notification to Customer by email, as stated in the email message. By continuing to use the Welcome Services after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is Customer’s responsibility to check the Welcome website regularly for modifications to this Agreement.
12. Term and Termination
12.1 Term. The term of this Agreement will commence when the Agreement is accepted by Customer as provided in the preamble to this Agreement (or in an Order Form) and will continue until terminated (the “Term”).
12.2 Termination for Cause. Either party may terminate this Agreement as follows: (i) effective on notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured for thirty (30) days after the non-breaching party provides the breaching party with notice of such breach; or (ii) effective immediately upon notice to the other party, if the other party has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
12.3 Effect of Termination. Upon termination of this Agreement, Customer’s rights to access and use the Welcome Services shall immediately cease, Customer shall immediately discontinue access to and use of the Welcome Services, and each party shall delete, destroy, or return all copies of the other party’s Confidential Information and certify in writing to the other party that such Confidential Information has been deleted or destroyed. No termination will affect Customer’s obligation to pay all fees with respect to the period through the date of termination or entitle Customer to any refund (except as provided in Section 12.2). Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
12.4 Survival. The provisions of Sections 2.2, 2.7, 4, 5, 7, 8, 9, 10, 11, 12.4, 12.5 and 13, and any payment obligations of Customer accrued as of the expiration or termination of this Agreement, shall survive the expiration or any termination of this Agreement.
13. General Provisions
13.1 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be deemed to be properly given: (a) when delivered personally or (b) upon receipt if sent been sent by certified mail, return receipt requested, postage prepaid or private industry express courier, with written confirmation of receipt. All notices shall be sent to, in the case of Welcome, the address set forth in the preamble to this Agreement and, in the case of Customer, the address set forth in the Order Form (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 13.1).
13.2 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by Customer without the prior written consent of Welcome. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective assignees and successors. Any attempted assignment other than in accordance with this Section 13.2 shall be null and void.
13.3 Governing Law; Arbitration; Class Action Waiver. This Agreement is exclusively governed by the laws of the United States (including the Federal Arbitration Act) and the State of New York, without regard to principles of conflicts of law, and regardless of Customer’s location.
a. Binding Arbitration. All disputes arising out of or related to this Agreement or any aspect of the relationship between customer and welcome, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including disputes arising out of or relating to the interpretation or application of this arbitration provision or the enforceability, revocability or validity of this arbitration provision or any portion of this arbitration provision, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Customer agrees that welcome and customer are each waiving the right to trial by a jury.
b. Rules. The arbitration will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The place of arbitration shall be New York City, New York. All disputes shall be resolved by a single arbitrator, selected by the AAA, in accordance with the applicable Commercial Arbitration Rules. The arbitrator shall conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by Customer or Welcome that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the arbitrator shall decide on the location. The arbitrator’s decision(s) shall be final and binding. The arbitrator shall have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the specific claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court with jurisdiction.
c. Class Action Waiver. Customer agrees that any arbitration under this Agreement will take place on an individual basis; class arbitrations, private attorney-general actions, class actions, and any other proceeding where someone acts in a representative capacity are not permitted, and customer is agreeing to give up the ability to participate in a class action. Combining individual proceedings without the consent of all parties is also not allowed. Disputes regarding the enforceability, revocability or validity of the foregoing class action waiver shall be exclusively resolved by an arbitrator appointed by the AAA, pursuant to the applicable arbitration rules.
d. Notwithstanding any of the foregoing, each party may seek and obtain temporary injunctive relief in any court of competent jurisdiction, and seeking such measures shall not be deemed incompatible with the arbitration provision in this Section 13.3 or a waiver of the right to arbitrate.
13.4 Attorneys’ Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses incurred by such prevailing or non-dismissing party in the legal action, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
13.5 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
13.6 Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement (except for the obligation to make payment) which is due to any event beyond the reasonable control of such party, including fire, explosion, unavailability of utilities, labor difficulties, war, riot, act of God, epidemic, export control regulation, laws, judgments or government instructions.
13.7 Limitation of Time to File Claims. Any cause of action or claim Customer may have arising out of or relating to the Welcome Services must be commenced within one (1) year after the cause of action accrues. Failure to do so will result in the cause of action or claim being permanently barred, and will constitute Customer’s complete and final waiver of the cause of action or claim.
13.8 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
13.9 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
13.10 Reference. Customer agrees to serve as a “reference customer” that may be disclosed by Welcome to third parties (including by displaying Customer’s name, logo and/or a link to Customer’s web site on Welcome’s web site) and, upon reasonable notice from Welcome, shall serve as a reference to potential customers, vendors, investors, or other third parties designated by Welcome; provided, however, that Welcome shall provide Customer with reasonable prior notice of its need to have Customer serve as a reference and will provide Customer with a reasonable opportunity to review any public references to Customer.
13.11 Entire Agreement. This Agreement, including all Order Forms and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter of this Agreement.