Welcome to Seek. We strongly encourage you to review the full Terms of Service that are below, all of which apply to your use of Seek Products.

TERMS OF SERVICE

THE TERMS OF SERVICE (THE “TERMS”) CREATE A LEGALLY BINDING CONTRACT BETWEEN THE ENTITY SPECIFIED AS A CUSTOMER (“CUSTOMER”) AND SEEK DATA LLC (“SEEK”). THE TERMS GOVERN CUSTOMER'S USE OF THE SOFTWARE AND ACCESS TO THE APPLICATIONS. CUSTOMER AGREES THAT THE TERMS, INCLUDING ANY APPLICABLE ORDERS, POLICIES, OR ANCILLARY AGREEMENTS INCORPORATED BY REFERENCE CONSTITUTE THE ENTIRE AGREEMENT (COLLECTIVELY, THE “AGREEMENT”) AND UNDERSTANDING OF THE PARTIES REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS ORAL AND WRITTEN AGREEMENTS. THE INDIVIDUAL ACCEPTING THE TERMS ON CUSTOMER’S BEHALF REPRESENTS THAT SUCH INDIVIDUAL IS OF LEGAL AGE AND HAS THE AUTHORITY TO BIND CUSTOMER. SEEK AND CUSTOMER ARE SOMETIMES REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”

1                DEFINITIONS.

“Application” or “App” means any software-related product licensed to Customer and its End Users which is distributed by Seek via the Software.

“Confidential Information” means any information, maintained in confidence by a Disclosing Party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or information that by its form, nature, content, or mode of transmission a reasonable recipient would deem confidential or proprietary, including Seek’s offer, pricing, and any benchmark data or results produced. Customer hereby acknowledges that the Software contains valuable trade secrets and Confidential Information of Seek.

“Customer Data” means all data provided by Customer to Seek or collected or accessed by Seek at the direction of Customer to enable Customer and its End Users to use the Software and access the Applications.

“Customer Systems” means Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party service providers,

“Dataset” means that set of rows and columns of alphanumeric content structured for use in the Software. Datasets may consist of content derived from Seek data, Third Party Data, and/or public data.

“Documentation” means all written and electronic information and materials made generally available by Seek to Customer and End Users relating to the access, use, operation or functionality of the Software, including technical and user manuals and operating instructions. The term “Documentation” does not include any content made available in the Software by third parties, including, without limitation, content published in user forums hosted or moderated by Seek, and any content related to any future functionality, or communications exchanged between Seek and Customer, unless such communications are specifically identified as Documentation within an applicable Order.

“End User” means any individual employee, contractor, or third-party agent authorized by Customer to use the Software licensed under the Agreement. The number of Users associated with each Subscription is indicated in the Order(s)

“Order” means the document(s) by which Customer procures a Subscription for the Software. An Order may also set forth any amounts to be prepaid by Customer for purposes of accessing Applications available in the Software.

“Software” means Seek’s Insight Cloud and any future offering(s) from Seek, in each case as set forth in and more specifically described in an applicable Order.

“Subscription” means the License as described in an Order.

“Support” means the technical support for the Software as specified in Section 5 below.

“Third Party Data” means data collected, purchased, licensed or otherwise procured by Seek on Customer’s behalf from third-party data providers.

2                USE OF THE SOFTWARE.

2.1            License Grant for Software.

 Subject to the terms and conditions of the Agreement, Seek grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license to use and access the Software, the Applications including applicable Datasets, and the Documentation, in each case, solely for Customer’s own internal business purposes, in accordance with the Documentation (the “License”). If Customer’s affiliates use the Software, Customer warrants that Customer has the authority to bind those affiliates and Customer agrees to be liable if such affiliates do not comply with the Agreement, including without limitation, the Acceptable Use Policy[1]. Any such use by Customer’s affiliates will count toward the licensing metrics set forth in an applicable Order.

2.2            End Users.

 Customer will be deemed to have taken any action that Customer permits, assists, or facilitates any End User, person, or entity to take related to the Agreement. Customer is responsible for End Users’ use of the Software, and the Applications as well as for End User compliance with the obligations under the Agreement, including without limitation, the Acceptable Use Policy.[2] If Customer becomes aware of any violation of Customer’s obligations under the Agreement caused by an End User, Seek may immediately suspend access to the Software and the Applications for such End User. 

2.3            Limitations on Use.

 Customer agrees not to (a) modify, prepare derivative works of, or reverse engineer, reproduce, translate, de-compile, or disassemble the Software, the Applications, and the Documentation; (b) sublicense transfer, lease, rent or otherwise assign Customer’s License to any third party; (c) use the Software, the Applications, and the Documentation; in violation of applicable laws, or regulations; (d) alter or remove any proprietary rights notices or legends appearing on or in the Software, , the Applications, and the Documentation; or (e) use the Software, or the Applications as a service bureau or application service provider for other third parties.

2.4            Customer Data.

Customer retains all rights to Customer Data. Seek does not own or license to Customer Data, provided however, Seek may use, modify, reproduce, and distribute Customer Data in order to provide and operate the Software or as otherwise contemplated in Seek’s Privacy Policy (the “Privacy Policy”). Customer warrants that (a) Customer has the right to upload or otherwise provide Seek with access to Customer Data with Seek and (b) Customer’s uploading, processing of, or providing Seek with access to Customer Data in the context of the Software does not infringe on any rights of any third party or violate any applicable law or cause Seek to do the same. Customer and Seek agree to apply reasonable technical, organizational, and administrative security measures to keep Customer Data protected in accordance with industry standards. Seek will not view, access or process any Customer Data, except: (i) as authorized or instructed by Customer or End Users in the Agreement or in any other agreement between the Parties; (ii) as required to comply with Seek’s policies, applicable law, or governmental requests; and (iii) as set forth in the Privacy Policy. Customer will have sole responsibility for the delivery, accuracy, and quality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Software. Customer shall ensure that all Customer Data provided to Seek will be stripped of any personally identifiable information and/or any protected health information. Seek may use metadata, technical data and related operations information collected from Customer’s use of the Software for internal use to market, advertise, develop, improve, operate and support its products and services and as otherwise contemplated in the Privacy Policy.

2.5            Customer Systems.

 To the extent applicable, Customer agrees that Customer Systems on which the Software is installed will be connected at all times to the Internet and Customer will not, intentionally or unintentionally, block, electronically or otherwise, the transmission of data required for compliance with the Agreement. Any blocking of data required for compliance under the Agreement is a material breach of the Agreement. Customer acknowledges and agrees that Seek shall have no obligation or liability with respect to Customer Systems.

2.6            Changes to the Software.

 Seek reserves the right to enhance, upgrade, improve, or modify features of the Software and to add or remove Applications from the Software as Seek deems appropriate and in Seek’s sole discretion. Seek may offer additional functionality to the Software or premium feature improvements for an additional cost.

2.7            Proprietary Rights.

 Customer acknowledges and agrees that Seek or Seek’s licensors retain all proprietary right, title and interest in the Software any data or information provided pursuant to the Software, Seek’s name, logo or other marks (collectively, the “Seek Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Customer agrees that Customer will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Seek Marks or is similar to any of these. 

3                TERM AND TERMINATION.

3.1            Term.

The initial term commitment for the Subscription will be as specified on an Order (“Initial Term”). The term of this Agreement shall commence upon Customer’s acceptance thereof and shall continue until the termination or expiration of the last then-current Order. After the Initial Term, the Subscription set forth on an applicable Order will automatically renew for additional periods of the same duration (“Renewal Terms”), unless either Party provides notice of non-renewal at least 30 days before the current term expires. Customer will continue to receive the Subscription for any Renewal Term in exchange for payment of Seek’s then-current fees. 

3.2            Termination.

 Either Party may immediately terminate the Agreement (a) if the other Party materially breaches its obligations and fails to cure within 30 days of receipt of written notice; (b) if a Party is adjudicated as bankrupt or makes an assignment for the benefit of creditors, or if a receiver, liquidator, administrator or a trustee is appointed for such Party’s affairs; (c) if a Party is dissolved; or (d) where permitted by applicable law.

3.3            Effect of Termination.

 If the Agreement or any individual Order is terminated, Customer must (a) immediately discontinue use of the Software which is subject to the termination, and (b) if applicable, within 30 days after such termination, at Seek’s direction, destroy or return all affected Software and Documentation and certify in writing that it has complied with this Section 3.3.

3.4            Survival.

 All provisions and obligations of the Agreement which by their nature should survive any termination of the Agreement will survive any such termination, including provisions and obligations with regard to accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability, engaging of third parties and liability for taxes and premiums.

4                FEES, TAXES, AND AUDIT.

4.1            Fees.

 Customer agrees to pay Seek the fees (“Fees”) specified in an applicable Order. Unless otherwise agreed between the parties in an applicable Order, all Fees must be paid in advance. All Fees are non-refundable. Seek may distribute temporary license keys to Customer until such time as an applicable invoice is paid in full. If Customer’s Subscription term is month-to-month, Fees are due and payable by wire transfer of immediately available funds to Seek, ACH, credit card, or in such other manner as Seek may direct. If Fees are remitted by credit card, Customer shall provide Seek such relevant credit card information and Customer hereby authorizes Seek to charge Customer’s credit card. Seek may take steps to update Customer’s credit card information (where permitted) to ensure that payment can be processed. Customer agrees that Customer’s credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. Seek may, where permitted by applicable law, suspend or terminate Customer’s access to the Software if at any time Seek determines that Customer’s payment information is inaccurate or not current. Customer is responsible for fees and overdraft charges that Seek may incur when Seek charges Customer’s card for payment. Seek reserves the right to update the price for access to the Software any time after expiration of Customer’s then-current term. Any price changes will be effective as of Customer’s next billing cycle. Seek may change the price for Applications at any time. In accordance with applicable law, Seek will notify Customer in a timely manner of any price changes by publishing in the Software, on Seek’s website, emailing, quoting, or invoicing Customer.

4.2            Delinquent Accounts.

 Customer acknowledges and agrees that any failure by Customer to make any timely payment(s) may result in Seek suspending or restricting Customer’s access to the Software. Customer agrees that any such suspension or restriction shall not be considered a breach of the Agreement. If Seek restricts or suspends Customer’s access to the Softwar in accordance with this Section 4.2, Seek may require Customer to pay a reasonable reactivation fee prior to resumption of access. In addition to its other rights and remedies, Seek may, in its sole discretion, assess finance fees of 1.5% per month (or, if such fees are greater than those permitted by applicable law, the highest finance fees permitted by such law) for any late payments by Customer. Seek shall be entitled to recover from Customer all costs of collection, including reasonable attorney’s fees.

4.3            Taxes and Withholding.

 Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Seek’s net income. Should any payment by Customer to Seek be subject to withholding tax by any government, Customer will reimburse Seek for such withholding tax.

4.4            Audit.

 Customer agrees that, upon Seek’s request during or after any Subscription period, Customer shall provide Seek in writing with a summary of its usage of the Software. Customer shall immediately owe and pay fees associated with usage in excess of the Software amounts licensed and promptly (and in no event more than 15 days after becoming aware thereof) remedy any underpayments revealed during an audit both retroactively as well as prospectively for the remainder of the Subscription term. Customer shall maintain complete, current and accurate records of the location of each copy of the Software in Customer’s possession for at least 5 years. Furthermore, Customer shall maintain the location of all End Users thereof, and the number of all End Users under the Agreement.

5                SUPPORT.

 Support is provided during the term of the applicable Order, pursuant to the Support terms in accordance with Seek’s Premium Support documentation. which will be distributed as part of onboarding. 

6                WARRANTIES.

 SEEK WARRANTS THAT THE SOFTWARE WILL CONFORM TO THE DOCUMENTATION UNDER NORMAL USE. SEEK DOES NOT REPRESENT OR WARRANT THAT (a) THE USE OF THE SOFTWARE WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, (b) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, OR (c) ALL ERRORS OR DEFECTS WILL BE CORRECTED. SEEK MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY NON-SEEK APPLICATIONS OR THIRD PARTY DATA OR PUBLIC DATA CONTAINED THEREIN OR ACCESSIBLE THROUGH THE SOFTWARE. THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT THE SOFTWARE IS PERMITTED TO CONTAIN CUSTOMARY LICENSE KEYS AND RESTRICTING ACCESS AFTER TERMINATION OR EXPIRATION OF A THEN-CURRENT SUBSCRIPTION TERM. USE OF THE SOFTWARE IS AT CUSTOMER’S SOLE RISK. IF SEEK BREACHES THE APPLICABE FOREGOING WARRANTY AND CUSTOMER PROMPTLY NOTIFIED SEEK IN WRITING OF THE NATURE OF THE BREACH, SEEK SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY REPAIR OR REPLACE THE NON-COMFORMITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SEEK DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.

7                CONFIDENTIALITY.

 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose Confidential Information. The Receiving Party agrees to (a) take reasonable precautions to protect such Confidential Information and (b) not use (except as otherwise permitted herein) or divulge to any third-party any Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to its directors, managers, officers, employees, subcontractors, consultants, representatives and agents (collectively, the “Representatives”) who are required to have such Confidential Information in order to carry out the purposes of the Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations at least as restrictive as the provisions of the Agreement. Each Party shall be responsible for any breach of confidentiality by its Representatives. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, the lawful requirement of a governmental agency, or when disclosure is otherwise required by applicable law; provided, however, that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (i) promptly notify the Disclosing Party in writing of such requirement for disclosure, and (ii) reasonably cooperate with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order. Upon the Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information and certify the same to the Disclosing Party. Any breach of the confidentiality obligations set forth in this Section 7 would constitute a material breach of the Agreement, which the Receiving Party acknowledges may cause irreparable harm to the Disclosing Party, leaving it without an adequate remedy at law. Such a breach shall entitle the Disclosing Party to seek injunctive relief in addition to all other remedies, without the necessity of posting of a bond or other security in connection therewith. The confidentiality obligations contained in the Agreement will remain in effect for a period of two years following the termination of the Agreement and, in the case of Confidential Information that constitutes a trade secret under applicable law, for so long as such Confidential Information remains a trade secret.

8                INDEMNIFICATION.

8.1            Customer Indemnification Obligations.

 Customer agrees to defend, indemnify and hold Seek, its affiliates and licensors, and each of their respective officers, employees, directors, managers, partners, and agents harmless from any and all losses, damages, expenses (including reasonable attorneys’ fees), rights, claims, or actions of any kind arising out of or relating to: (a) Customer’s or any End User’s breach of Section 2 of the Terms, (b) Customer’s violation of applicable law, or (c) any third party claim brought against Seek alleging that materials maintained on behalf of Customer or Customer Data used in connection with the Software or the Applications infringes or misappropriates any patent subsisting, copyright, trademark or trade secret of a third party.

8.2            Seek Indemnification Obligations.

 Seek shall defend, indemnify and hold Customer and its affiliates and licensors, and each of their respective officers, employees, directors, managers, partners, and agents from and against any third-party claim brought against Customer that Customer’s use of the Software in accordance with the Agreement and the Documentation infringes or misappropriates any patent subsisting, copyright, trademark or trade secret. If any part of the Software becomes or, in Seek’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Seek may, at its sole option: (a) procure for Customer the right to continue using the affected Software, (b) replace or modify the affected Software with a functional equivalent so that it does not infringe, or, if either (a) or (b) is not commercially feasible, (c) terminate the Subscription and refund the Subscription fee received from Customer for the affected portion of the Subscription less a usage charge based on a 12-month amortization schedule.

8.3            Exceptions to Seek Indemnification Obligations.

 Seek shall have no liability for any third-party claim of infringement based upon: (a) use of other than the then current, unaltered version of the Software, unless the infringing portion is in the then current, unaltered release; or (b) use, operation or combination of the Software with non-Seek programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination.

8.4            Indemnification Procedures.

 As a condition to any right to indemnification under the Agreement, the indemnified Party must: (a) promptly give the indemnifying Party written notice of any applicable claim or proceeding; (b) give the indemnifying Party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying Party may not settle any claim or proceeding unless it unconditionally releases the indemnified Party of all liability); and (c) give the indemnifying Party all reasonable assistance, at the indemnifying Party’s expense. THIS SECTION STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY CLAIM OR PROCEEDING SUBJECT TO INDEMNIFICATION HEREUNDER.

9                LIMITATIONS OF LIABILITY.

9.1            Limitation on Direct Damages.

  EXCEPT FOR A PARTY'S WILLFUL BREACH OF A MATERIAL TERM OF THE AGREEMENT, A PARTY'S AGGREGATE LIABILITY FOR DAMAGES (DIRECT OR OTHERWISE) CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY WAY RELATED TO OR ARISING FROM OR UNDER THE AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE PORTION OF THE FEES RECEIVED BY SEEK FROM CUSTOMER FOR THE 12-MONTH SUBSCRIPTION PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

9.2            Indirect Damages Disclaimer.

 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR RELATING TO: (a) LOSS OF DATA, (b) LOSS OF INCOME, (c) LOSS OF OPPORTUNITY, (d) LOST PROFITS, OR (e) COSTS OF RECOVERY, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.

10             GENERAL TERMS.

10.1         Third Party Data and Services.

 Seek may provide (a) the ability for Customer to access certain Applications and Third Party Data and (b) the capability for Customer to link to or integrate with third party sites or applications separately accessed by Customer and not purchased from Seek. Seek is not responsible for and does not endorse such Applications, Third Party Data, or third party services. Customer has the sole discretion whether to access any Applications, Third Party Data, or third party services. Customer’s use of such non-Seek Applications, Third Party Data, and third party services may be governed by separate terms established by the provider of such non-Seek Applications, Third Party Data, or third party services. Seek disclaims all warranties, express or implied, and all liability for all non-Seek Applications, Third Party Data, and third party services Seek has sold or made accessible to Customer. By using the Software, Customer hereby acknowledges and agrees to any applicable license terms associated with non-Seek Applications, Third Party Data, and third party services. Customer acknowledges and agrees that Seek shall have no obligation or liability with respect to any non-Seek Applications, Third Party Data, or third party services. Customer hereby agrees that each applicable provider of non-Seek Applications, Third Party Data, or third party services is the intended third-party beneficiary of the Agreement and Customer’s agreement to comply with the terms thereof. In the event of a conflict between the terms and conditions applicable to a non-Seek Application, Third Party Data, or third party services and the Agreement, the Agreement shall control.

10.2         Beta Services.

 Seek may offer Customer access to beta services that are being provided prior to general release. Seek does not make any guarantees that these beta services will be made generally available (the “Beta Services”). Customer understands and agrees that the Beta Services may contain bugs, errors, and other defects, and use of the Beta Services is at Customer’s sole risk. Customer acknowledges that Customer’s use of Beta Services is on a voluntary and optional basis, and Seek has no obligation to provide technical support and may discontinue offering of Beta Services at any time in Seek’s sole discretion and without prior notice to Customer. Beta Services are offered “AS-IS” and to the extent permitted by applicable law, Seek disclaims any liability, warranties, indemnities, and conditions, whether express, implied, statutory, or otherwise. If Customer is using the Beta Services, Customer agrees to receive related correspondence and updates from Seek and acknowledges that opting out may result in cancellation of Customer’s access to the Beta Services. If Customer provides feedback about the Beta Services (“Feedback”), Customer agrees that Seek owns any such Feedback. For the Beta Services only, the terms in this Section 10.2 supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.

10.3         Class Actions.

 Customer may only resolve disputes with Seek on an individual basis and Customer agrees not to bring or participate in any class, consolidated, or representative action against Seek or any of Seek’s employees or affiliates.

10.4         Security Emergencies.

 If Seek reasonably determines that the security of the Software or Seek’s infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, Seek may temporarily suspend Customer’s access and Seek will take action to promptly resolve any security issues. Seek will notify Customer of any suspension or other action taken for security reasons.

10.5         Force Majeure.

 Seek shall not be liable for, nor shall Seek be considered in breach of the Agreement due to, any failure to perform its obligations under the Agreement as a result of a cause beyond its reasonable control, including any act of God or a public enemy, terrorist act, act of any military, civil or regulatory authority; change in any law or regulation; epidemic, pandemic, freight embargo, strike, fire, flood, earthquake, storm or other like event; disruption or outage of communications, power or other utility; labor problem; unavailability of supplies; introduction of a virus, worm or similar disabling code in the Software by Customer or a third party; or any other cause, whether similar or dissimilar to any of the foregoing.

10.6         Assignment.

 Either Party may assign the Agreement and any of its rights or obligations hereunder to its affiliates or in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, reorganization, or change in control or similar transaction. 

10.7         Severability.

 If any part of the Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.

10.8         Waiver.

 Any failure by either Party to detect, protest, or remedy any breach of the Agreement will not constitute a waiver or impairment of any such term or condition, or the right of such Party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. A waiver can only occur pursuant to the prior written express permission of an authorized officer of the other Party.

10.9         Notices.

 All notices, instructions, requests and other communications required or permitted under the Agreement shall be in writing and shall be delivered in person or sent by either commercial overnight courier or certified or registered mail, return receipt requested, or electronic transmission to either Party at the respective addresses set forth on the applicable Order or to such other address as specified in writing by a Party to the other Party in accordance with the terms of this Section 10.9. All such notices, instructions, requests and other communications shall be deemed effective (a) immediately if delivered in person; (b) the next business day if delivered by commercial overnight courier; (c) three business days after deposit with the United States Postal Service, postage prepaid, if delivered by certified or registered mail; or (d) when delivered, if delivered by electronic transmission such as electronic mail.

10.10       Open Source Software.

 The Software may contain open source software (“OSS”) licensed under such OSS’s applicable license terms and not the Agreement.

10.11       Export Restrictions.

 Export laws and regulations of the United States and any other applicable jurisdictions apply to the Software. Customer agrees that such applicable export control laws govern Customer’s use of the Software and agrees to comply with all such applicable export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information or Software will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws, including nuclear, chemical or biological weapons proliferation, or development of missile technology. Customer represents and warrants that Customer is not: (a) located in a country that is subject to a U.S. Government embargo (e.g., an embargoed country as designated by the Office of Foreign Asset Control of the U.S. Treasury Department), or that has been designated by the U.S. Government as a “terrorist supporting” country; or (b) listed on any U.S. Government list of prohibited or restricted parties (e.g., the prohibited persons list maintained by the Bureau of Industry and Security of the U.S. Department of Commerce).

10.12       Counterparts.

 The Agreement, if applicable, may be executed in multiple counterparts, each of which when so executed shall be deemed to be an original, and all such counterparts shall, together, constitute one instrument. Signatures to the Agreement may be exchanged by facsimile, portable document format or other similar electronic format, and all signatures exchanged in such manner shall constitute and be deemed original signatures.

10.13       Governing Law.

 The Agreement shall be governed by the laws of the State of Delaware, which governing law shall control without giving effect to conflict of law principles and excluding the U.N. Convention on Contracts for the International Sale of Goods, even where adopted as a part of the domestic law of the country whose law governs the Agreement. Any suit or proceeding relating to the Agreement shall be brought exclusively before the state or federal courts located in the State of Delaware.

Any disputes arising in countries not recognizing or not executing court verdicts from the jurisdiction set forth in this Section 10.13 shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). Such disputes or claims shall be settled by simplified arbitration arranged by ICC in accordance with the rules of arbitration procedure adopted by ICC and in force at the time when such proceedings are commenced. Arbitration shall be conducted in the State of Delaware before one arbitrator is appointed in accordance with the ICC Rules. All arbitration shall be conducted in English. The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon shall be confidential and may be entered in any court of competent jurisdiction. Nothing in this Section 10.13 shall prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief.

10.14       Interpretation.

 The following rules of interpretation must be applied in interpreting the Agreement: (a) the section and subsection headings used in the Terms are for reference and convenience only, and will not enter into the interpretation of the Terms, (b) all references to sections are to the sections in the Terms or, as applicable, a policy or ancillary agreement incorporated into the Terms, and (c) as used in the Agreement, the term “including” will always be deemed to mean “including without limitation.”

10.15       Publicity.

 Seek may use Customer’s name and may disclose that Customer is a licensee of the Software in Seek advertising, press, promotion and similar public disclosures; provided, however, that such advertising, promotions or similar public disclosures shall not indicate that Customer in any way endorses any Software, without prior written permission from Customer.

10.16       Independent Contractors.

 In the performance of the Agreement, each Party is an independent contractor, and the employees, officers and agents of one Party will act only in the capacity of representatives of that Party and not as employees, officers or agents of the other Party.

10.17       Order of Precedence.

 Any conflict or inconsistency among or between the terms and conditions of the documents comprising the Agreement shall be resolved according to the following order of precedence: (a) an executed Order and (b) the Terms.