TERMS AND CONDITIONS
BY EXECUTING AN ORDER FORM AND/OR STATEMENT OF WORK THAT REFERENCES THESE TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) OR BY OTHERWISE USING OR ACCESSING THE PLANNLY PLATFORM AND ASSOCIATED SERVICES (EACH AS DEFINED IN SECTION 1 BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLANNLY PLATFORM.
This Agreement, by and between Customer and Plannly, Inc., a Delaware Corporation, (“Plannly”), is effective as of the date of Acceptance (the “Effective Date”) and governs the relationship between Customer and Plannly with respect to any Services ordered pursuant to any Order Form. Each of Plannly and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.
1.1 “Access Protocols” mean any login information, passwords, security protocols, policies and procedures through which Authorized Users access a Plannly Platform.
1.2 “Authorized User” means any employee of Customer authorized by Customer to access the Plannly Platform pursuant to the terms of this Agreement, and subject to any limitations or restrictions set forth on the applicable Order Form.
1.3 “Claims Funding Method” means an electronic funds transfer debit method under which Plannly automatically withdraws funds from the Customer’s bank account, in which the claims funding method for HSAs and FSAs is payroll deductions and member funding, using a method agreed upon by the Customer and Plannly.
1.4 “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended from time to time, and the rules and regulations thereunder. Reference to any provision of COBRA or rule or regulation thereunder will be deemed to include any amended or successor provision, rule, or regulation.
1.5 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder. Reference to any Code provision or rule or regulation thereunder will be deemed to include any amended or successor provision, rule, or regulation.
1.6 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the business, products, services or operations of either Party that has been identified as confidential, or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, but not limited to: (a) trade secrets, inventions, ideas, processes, computer source and object code, algorithms, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (b) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers and agents; and (c) the existence of any business discussions, negotiations, or agreements between the disclosing Party and the recipient or any third party.
1.7 “Covered Benefits” means benefits provided by the Customer to its Authorized Users under applicable Plans, and as applicable, COBRA.
1.8 “Customer Data” means any data or information provided or submitted by Customer or its Authorized Users to or through the Services. Customer Data does not include any component of the Services or Documentation.
1.9 “Documentation” means the service descriptions available at DOCUMENTATION LINK and any other documentation made available by Plannly to Customer or Authorized Users that describes the features, functionality or operation of the Services.
1.10 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations thereunder. Reference to any provision of ERISA or rule or regulation thereunder will be deemed to include any amended or successor provision, rule, or regulation.
1.11 “Error” means a reproducible failure of the Services to substantially or materially conform to the Documentation.
1.12 “Fees” mean the fees and charges set forth in the applicable Order Form.
1.13 “Plannly Card” means the credit card issued to Authorized Users to make purchases related to the Services. These pre-paid debit cards are linked to the account balances that the Authorized User has on the Plannly platform.
1.14 “Plannly Platform” means Plannly’s cloud-based proprietary platform which is designed to assist companies in implementing their benefits programs by automating operations and making it easy for employees to access benefits related products and services.
1.15 “Plans” means the spending plan(s) maintained and sponsored by the Customer. The Plan(s) may include Health Reimbursement Arrangement (“HRA”), Health Spending Account (“HSA”), Flexible Spending Account (“FSA”), Commuter, and Employer-Subsidized Account.
1.16 “Order Form” means an order form, executed by both Parties, that sets forth the Services ordered, the applicable term thereof, and the schedule of payments for the provision of the Services, and any unique additional terms.
1.17 “Services” means the Plannly Platform, and any other services ordered by Customer, to be provided by Plannly, as set forth in an Order Form and/or statement of work.
1.18 “Statement of Work” means a written description of additional services ordered by Customer and to be provided by Plannly, including respective responsibilities, deliverables, applicable fees, and other agreed-upon details.
2. CUSTOMER RESPONSIBILITIES
2.1 Sole Responsibility for the Covered Benefits and Legal Compliance. The Customer has sole responsibility for the establishment and operation of the Covered Benefits. Customer will have sole discretionary authority and responsibility for construing and interpreting the provisions of the Covered Benefits and deciding all questions of fact arising from or in connection with the use of the Covered Benefits by the Authorized Users, including but not limited to establishing standards governing the eligibility of individuals to receive or participate in the Covered Benefits, determining whether an individual is eligible to receive or participate in any Covered Benefits, and resolving all disputes relating to eligibility and compliance. It is Customer’s sole responsibility and duty to ensure compliance with all applicable laws and regulations, including but not limited to ERISA, COBRA, HIPAA, Sections 105, 106, 125 (including, without limitation, compliance with applicable nondiscrimination requirements), 132, and 223 of the Code, and PPACA. Customer agrees and acknowledges that it is solely responsible for determining whether or not it is a component member of a controlled group, common control group, or affiliated service group, under Sections 414(b), (c), or (m) of the Code and for the consequences, under ERISA and the Code, of such status. Customer acknowledges that Plannly is not an accounting or law firm and no Services provided in accordance with this Agreement will be construed as tax or legal advice as a result of providing such Services. Plannly’s provision of the Services under this Agreement does not relieve the Customer of its obligation to ensure compliance with applicable laws. It is the Customer’s responsibility to pay any tax, fee or penalty arising from the Covered Benefits that is assessed by the Internal Revenue Service, the Department of Labor, and other federal or state governmental agencies.
2.2 Reporting. Customer assumes all responsibility for tax reporting relating to the payment to or reimbursement of any benefit for an Authorized User, and for operation of the Covered Benefits, including but not limited to income withholding, Customer-based reporting, and filing of Form(s) 5500, to the extent required.
2.3 Nature of Services. The Parties agree that, to the fullest extent permitted by applicable law, the duties to be performed by Plannly under this Agreement, as amended from time to time, are non discretionary duties. To the fullest extent permitted under applicable law, Plannly is not the “named fiduciary,” “plan sponsor,” or “plan administrator” (as such terms are described in ERISA, other applicable law, or the Customer’s Covered Benefits documentation) nor does it assume any of the obligations or responsibilities corresponding to those designations. Customer will not represent to Authorized User or to any third party that Plannly is a “named fiduciary,” “plan sponsor,” or “plan administrator” (as such terms are described in ERISA or other applicable law (whether or not ERISA applies).
2.4 HSA Not an ERISA Plan. If Customer offers an HSA to its employees, Customer will do so in such a manner that the HSA will not constitute an “employee benefit plan” within the meaning of Section 3(3) of ERISA. Customer acknowledges that any Services provided by Plannly with respect to the HSA need not comply with ERISA requirements.
3. ACCESS, RIGHTS AND RESTRICTIONS
3.3 Customer Restrictions. Customer will not, and will not authorize or permit any Authorized User or third party to: (a) knowingly interfere with or disrupt the integrity or performance of the Plannly Platform or the data contained therein; (b) adapt, alter, modify, improve, translate or create derivative works of the Services; (c) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Services; (d) use the Services to build a similar or competitive product or service; (e) sublicense or provide any third party (other than Authorized Users) access to the Plannly Platform or use the Services on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment, except as may be specifically provided in an Order Form, or otherwise approved by Plannly in writing; or (f) otherwise use the Services in any manner that exceeds the License permitted under the Documentation, this Agreement or applicable law.
3.4 No Trust. Notwithstanding any provision herein to the contrary, the Parties acknowledge and agree that any funds contributed to Customer’s bank account to effect the Claims Funding Method: (a) are and shall remain the Customer’s general assets; (b) are not “plan assets” within the meaning of ERISA, without regard to whether ERISA applies to the accounts at issue; (c) were never held in an account, fund or trust bearing the name of a Customer component reimbursement account, plan, program or any participants or beneficiaries thereof; and (d) shall always remain subject to the claims of the Customer’s creditors. The Customer further understands that Plannly is not responsible for satisfying any applicable trust requirements solely because funds are transmitted in accordance with this Agreement.
3.5 Security / Service Levels. The Services will be performed in accordance with the Plannly Security Policy, as may be amended from time to time, and the Service Level Agreement.
3.6 Exclusions. Plannly will have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or its Authorized Users’ use of any version of the Plannly Platform other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Plannly; (d) nonconformities resulting from abuse, negligence, or use of all or any part of the Plannly Platform or Documentation in noncompliance with this Agreement or applicable law; (e) problems or Errors caused by Customer’s, Authorized Users’, or other third party’s products, services or equipment, except if the causal action was carried out upon the written recommendation of Plannly; (f) modification, amendment, revision, or change to the Plannly Platform by any party other than Plannly or an authorized representative of Plannly, except if the modification, amendment, revision, or change was carried out upon the written recommendation of Plannly; or (g) any use of or reliance on data or data output contained in the Plannly Platform, which shall be Customer’s or Authorized User’s responsibility.
4. CONFIDENTIAL INFORMATION
4.1 Use and Disclosure. During this Agreement, each Party will have access to the other Party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each Party’s obligations, under this Agreement, each Party agrees as follows: (a) to not use, disclose or reproduce the Confidential Information disclosed by the other Party for any purpose other than exercising its rights and performing its obligations as described herein; (b) to protect the disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances; and (c) to limit access to the disclosing Party’s Confidential Information to such of its employees, contractors and advisors, who have a need to know and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement (each a “Representative”). The recipient will be liable for the acts and omissions of its Representatives with respect to the discloser’s Confidential Information.
4.2 Exceptions. The provisions of Section 4.1 will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of the recipient; (b) is already known by the recipient without obligation of confidentiality; (c) is independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information; or (d) is lawfully received from a third party without obligation of confidentiality. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (i) by regulatory requirements, (ii) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to such order or applicable law will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (iii) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
4.3 Return; Remedies. Upon termination of this Agreement, the recipient will return to the disclosing Party or destroy all copies of the disclosing Party’s Confidential Information, other than copies of any computer records and files containing information which have been created pursuant to a Party’s automatic electronic archiving and back-up procedures, which will continue to be subject to the other terms of this Agreement. Each Party agrees that any actual or threatened breach of this Section 4 will constitute immediate, irreparable harm to the innocent Party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
5. PROPRIETARY RIGHTS
5.2 Aggregated Data. Customer acknowledges and agrees that Plannly has the right to create, collect, use, store, transmit, disclose, and otherwise process aggregated and/or deidentified data generated or derived from Customer Data or use of the Services for Plannly’s business purposes, including to improve its products and services.
5.3 Compliance. Customer represents and warrants that (a) it will comply with all privacy and data protection laws and regulations applicable to Customer Data, as well as Customers’ and Authorized Users’ use of the Services and (b) it has, and will maintain, all rights, consents, and authorizations to grant the rights to set forth in this Section 5.
5.4 Plannly Platform. Except for the limited licenses and access grant provided to Customer in this Agreement, Plannly retains all right, title and interest in its intellectual property and business including the Plannly Platform, Documentation and any Plannly trademarks and service marks. Unless otherwise expressly set forth in any Order Form, all work product or Services provided or developed pursuant to this Agreement or any Order Form (including any modifications and improvements to any Plannly Platform), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Plannly. All rights not expressly granted to Customer in this Agreement are reserved by Plannly.
5.5 Continuous Development. Customer acknowledges that Plannly may continually develop, deliver and provide to Customer ongoing innovation to the Plannly Platform, in the form of new features, functionality, and efficiencies. Accordingly, Plannly reserves the right to modify the Plannly Platform, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Plannly adds additional functionality to the Plannly Platform, Plannly may condition the implementation of such modifications on Customer’s payment of additional fees, provided, however, that Customer may continue to use the version of the Service that Plannly makes generally available (without such features) without paying additional fees for the remainder of the then-current Term.
5.6 Feedback. Plannly in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Customer, including Authorized Users, to Plannly in connection with its access to and use of the Services (all reports, comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants to Plannly a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Plannly products and services.
6.1 Fees; Payment. In consideration for the rights granted to Customer and the Services performed by Plannly under this Agreement, Customer will pay to Plannly the Fees. Except as set forth in an Order Form, all Fees are billed on a monthly basis and are due and payable to Plannly within thirty (30) days of the date of the invoice. Plannly reserves the right (in addition to any other rights or remedies Plannly may have) to discontinue the Plannly Platform and suspend all Authorized Users’ and Customers’ access to the Plannly Platform if any Fees are more than thirty (30) days overdue until such amounts are paid in full. All Fees will be paid in U.S. dollars. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Plannly’s net income.
6.2 Funding of Covered Benefits. To the extent Customer desires to offer Plannly Cards and/or other Covered Benefits to its employees under the Agreement, Customer agrees to prefund Customer’s Covered Benefits deposit account (the “Deposit Account”) by depositing funds in an amount no less than ten percent (10%) of the total estimated Covered Benefits budget for the year, or such other reasonable amount as mutually agreed upon by Customer and Plannly (the “Minimum Balance”). Customer hereby authorizes Plannly to transfer additional funds from Customer’s designated bank account (“Customer’s Bank Account”) to the Deposit Account as needed to maintain the Minimum Balance. Any unused funds remaining in the Deposit Account at expiration or termination of this Agreement or an applicable Order Form will be remitted back to Customer or Customer’s Bank Account thirty (30) days following such expiration or termination. Plannly will not be liable, nor advance its own funds, for the payment of any Covered Benefits claims. Plannly does not insure, underwrite, or guarantee Customer's liability to provide benefits or the payment of any benefits due under any Covered Benefit. The Customer shall have full responsibility and liability for payment of claims in accordance with the provisions of the applicable Covered Benefit.
Except as otherwise agreed to in an Order Form, (a) Plannly may publicly refer to Customer, including on Plannly’s website and in sales presentations, as a Plannly customer and may use Customer’s logo for such purposes; (b) Customer may publicly refer to itself as a customer of the Plannly Platform, including on Customer’s website and in sales presentations; and (c) each Party hereby grants the other a limited, worldwide, license to use the other’s logo in conformance with such Party’s trademark usage guidelines and solely for the purpose set forth in this Section or the applicable Order Form. Each party may issue press releases publicly announcing this relationship subject to the approval of the other Party, such approval not to be unreasonably withheld.
8. REPRESENTATIONS; WARRANTY DISCLAIMER; LIMITATIONS ON LIABILITY
8.1 Representations. Each Party hereby represents and warrants: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. The Customer further represents and warrants: (i) it has all rights necessary to provide any documentation and other materials that it may make available to Plannly under this Agreement, and that Plannly’s use of such documentation and other materials in accordance with this Agreement will not infringe, misappropriate, or otherwise violate any proprietary rights of a third party; (ii) Customer’s and its Authorized Users’ use of the Services will comply with all applicable laws, rules and regulations. Plannly further represents and warrants: (A) the Plannly Platform is in material compliance with the Documentation; and (B) Plannly will provide the Plannly Platform in material conformance with the terms of the service level agreement for the Plannly Platform.
8.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. PLANNLY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE PLANNLY PLATFORM WILL BE ACCURATE, WITHOUT INTERRUPTION, SECURE OR ERROR-FREE.
8.3 Disclaimer of Certain Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL PLANNLY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
8.4 Limitations on Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER ANY ORDER FORM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY PLANNLY UNDER SUCH ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
9.1 Plannly Indemnity. Plannly will indemnify, defend and hold Customer, its directors, officers, employees and representatives (each a “Customer Indemnified Party”), harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that the Plannly Platform infringes, misappropriates or violates any copyright, trademark or trade secret.
9.2 Exclusions. Section 9.1 will not apply if the alleged claim arises, in whole or in part, from: (a) any use of the Plannly Platform by any Customer or any Authorized User not in accordance with this Agreement or as specified in the Documentation; (b) any modification of the Plannly Platform by any person other than Plannly or its authorized agents; (c) the Customer Data; (d) any use of the Plannly Platform in combination with other third party services, products, equipment, software or data not supplied by Plannly; (e) any use of the Plannly Platform that does not conform with applicable law (any of the foregoing circumstances under clauses (a), (b), (c),(d), and (e) will be collectively referred to as a “Customer Indemnity Responsibility”).
9.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Plannly, its directors, officers, employees and representatives (each a “Plannly Indemnified Party”), from and against any and all Losses arising out of any third party claim arising out of or relating to any Customer Indemnity Responsibility.
9.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified Party: (a) notifying the indemnifying Party promptly in writing of such action; (b) reasonably cooperating and assisting in such defense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying Party with the understanding that the indemnifying Party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified Party, without the indemnified Party’s consent.
9.5 Infringement and Compliance with Laws. If the Plannly Platform is, or in Plannly’s opinion, is likely to become the subject of any infringement-related claim or a claim that the Plannly Platform is not in compliance with applicable laws, rules and regulations, then Plannly may, at its expense and in its discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the infringing or non-compliant technology or material so that the Service becomes non-infringing and remains materially functionally equivalent; or (c) terminate the Order Form(s) pursuant to which the Plannly Platform is provided and give Customer a refund for any pre-paid but unused fees. THE PROVISIONS OF THIS SECTION 9.5 STATE PLANNLY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT OR VIOLATES OR IS OTHERWISE NOT IN COMPLIANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS.
10. TERM AND TERMINATION
10.1 Term. This Agreement will begin on the Effective Date (as indicated in the applicable Order Form) and continue for the initial term set forth on the Order Form (the “Initial Term”). Thereafter, the Initial Term will automatically renew for successive one-year terms (each, a “Renewal Term”), unless and until either party provides notice to the other party of its intent not to renew at least ninety (90) days prior to the end of the Initial Term or then-current Renewal Term. The Initial Term and any Renewal Terms are collectively referred to as the “Term”.
10.2 Termination. Except as otherwise specified in an Order Form, either Party may terminate this Agreement or any Order Form (a) at its discretion, effective immediately upon written notice to the other if the other Party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice; and (b) at its discretion, effective immediately upon written notice to the other Party if there are no outstanding Order Forms. Further, Plannly may terminate this Agreement or any Order Form immediately upon notice to Customer in the event of a change in laws, rules, or regulations that would interfere with Plannly’s provision of any Service.
10.3 Termination Upon Bankruptcy or Insolvency. Each Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event: (a) that either Party becomes insolvent or unable to pay its debts when due; (b) either Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) either Party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of a Party’s creditors.
10.4 Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to Plannly before such termination or expiration will be immediately due and payable; (b) all rights and obligations of both Parties, including all licenses granted hereunder, will immediately terminate; (c) Customer will return any hardware to Plannly in the same condition as it was received at the beginning of the Term, reasonable wear and tear excepted; and (d) each Party will return to the other all property (including any Confidential Information and Customer Data) of the other Party. Any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
11 GENERAL. The terms and conditions of this Agreement are severable. 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. Neither Party may assign this Agreement without the other Party’s prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise. Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement and the Order Form are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Order Form, the terms of this Agreement will prevail, unless the Order Form expressly amends a provision in this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the recipient’s address on the applicable Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Plannly Platform will cause irreparable harm and injury to Plannly for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Plannly will be entitled to injunctive relief in the event Customer uses the Plannly Platform in violation of the limited license granted herein or uses the Plannly Platform in any way not expressly permitted by this Agreement or Documentation. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement may not be amended in any respect other than by written instrument executed by the party against whom enforcement is sought.