This Agreement sets forth the basic terms and conditions under which Customer may subscribe to SDX’s Online Services and purchase other services from SDX pursuant to the attached Order Form and any future Order Forms signed by both parties referencing this Agreement.
Capitalised terms not defined in context shall have the meanings assigned to them below:
(a) "Account" means the account set up for the purpose of accessing and using the Online Services pursuant to the Subscription as set out in the appropriate Order.
(b) “Affiliate” means any legal entity controlling, controlled by, or under common control with a party to this Agreement where control means ownership of or the right to control greater than 50% of the voting securities of such entity.
(c) "Customer Content" means the data concerning the activities of visitors to Customer’s website that is collected by Customer using the Online Services.
(d) “Documentation” means the technical documentation generally made available by SDX to its customers with regard to the Online Services.
(e) “Intellectual Property Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
(f) “Online Services” means the services, software and/or products described in the Documentation and provided by SDX through its website www.simplicity.com or any other Website operated by SDX and including, without limitation, the SDX TAG.
(g) “Order Form” means the document in the form attached hereto, or any similar form, specifying the Online Service and other services purchased by Customer and to be provided by SDX pursuant to this Agreement. An Order Form shall not be effective unless signed by both parties.
(h) “Personally Identifiable Information " or “PII” means any information relating to an identified or identifiable natural person including any information defined as “personally identifiable information,” “personal information,” “personal data” or similar terms as such terms are defined under applicable laws and regulations, including any privacy or data protection laws.
(i) “Subscription Period” shall mean the period of time specified in an Order Form during which Customer shall be permitted access to the Online Services.
(j) "SDX Tag" means the proprietary SDX software program, which is installed by Customer on its web pages and with its ecommerce platform for the purpose of enabling Customer to collect Customer Content for use with the Online Services. SDX TAG shall include any updates and upgrades SDX makes generally available to its customers as part of the Online Services.
2. Online Service Access and Use
2.1.1 During the Subscription Period set forth in the Order Form, Customer may use the Online Services solely for its own internal use. Customer will not and will not allow third parties to (i) use the Online Services to collect, track or record any Personally Identifiable Information (PII); (ii) make the Online Services available for timesharing, application service provider or service bureau use; (iii) use the Online Services outside of the scope of this Agreement; (iv) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; and/or (v) send or store material containing software viruses, worms, Trojan horses, malware, or other harmful computer code, files, scripts, agents, or programs.
2.1.3 Customer agrees to indemnify, hold harmless and defend SDX, at its expense, against any and all third-party claims, actions, proceedings, and suits brought against SDX or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by SDX or any of its officers, directors, employees, agents or affiliates, arising out of or relating to any breach by Customer of its obligations under this Section 2.
2.2 Account. To access and use the Online Services, Customer must request that SDX sets up an Account. When setting up its Account, Customer must provide current, complete and accurate information. Customer is responsible for safeguarding the confidentiality of its password(s) and username(s) issued to Customer by SDX, and for any use or misuse of its Account resulting from any third party using a password or username issued to Customer. SDX will not be liable for any loss and/or damage resulting from Customer’s failure to comply with this section. Customer agrees to notify SDX immediately upon learning of any unauthorized use of its Account.
3. SDX TAG License
Subject to the terms of this Agreement and payment of the applicable fees, SDX grants to Customer, and Customer accepts from SDX a, non-exclusive, non-transferable (except as otherwise set forth herein) and non-sub-licensable license to, install, execute, access, run, or otherwise use the SDX TAG during the Subscription Period, but only in accordance with the Documentation and solely in conjunction with Customer’s use of the Online Services. Customer will not and will not allow any third party to: (i) copy, modify (other than as authorized by SDX for use with the Online Services), adapt, translate or otherwise create derivative works of the SDX TAG; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the SDX TAG; (iii) rent, lease, sell, assign, sublicense or otherwise transfer rights in the SDX TAG; (iv) remove any proprietary notices or labels on the SDX TAG or placed by the SDX TAG. SDX’s technical staff may instruct Customer, from time to time, to perform modifications to the SDX TAG (or replace the SDX TAG) which is installed on Customer’s website in order for SDX to continue to provide the Online Services. Customer agrees to cooperate and perform any such requested modification as soon as reasonably possible. SDX shall not be responsible for issues caused by Customer’s failure to implement any requested modification.
4. Reservation of Rights and Ownership
4.1 The Online Services (including any derivatives and enhancements) and all Intellectual Property Rights in the Online Services is, and shall remain, the property of SDX. All rights in and to the Online Services not expressly granted to Customer in this Agreement are hereby expressly reserved and retained by SDX and its licensors without restriction, including, without limitation, SDX’sright to sole ownership of its logos, trademarks, trade secrets, databases, reports, and Website.
4.2 Customer agrees not to (and not to allow any third party to): (i) use any copyright or other proprietary rights associated with the Online Services for any purpose without the express written consent of SDX; (ii) register, attempt to register, or assist anyone else to register any trademark, trade name, service marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with SDX other than in the name of SDX; or (iii) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Online Services.
4.3 Customer owns and retains full ownership of the Customer Content. Customer hereby allows SDX to collect, store and process the Customer Content only as necessary to provide the Online Service and improve the service. Customer gives SDX permission to aggregate Customer Content together with other SDX customer information and third-party data sources into Network Data. Without limiting the foregoing, SDX will process any PII contained within Customer Content in accordance with the SDX Data Processing Agreement. Network Data is defined as anonymous, aggregated Customer Content specifically excluding individual personally identifiable customer data. Customer permits SDX to use Network Data to improve the Service and produce benchmarks. On Termination of this agreement ownership of any Customer Content that has been aggregated into Network Data remain vests in SDX.
4.4 SDX will not use or disclose Customer Content to any third parties except (i) if required in limited circumstances, including, when complying with legal requirements, preventing fraud or imminent harm, and ensuring the security of its network and services; (ii) if it is part of aggregated information, such as average page load time, or the number of pages processed by the application per day; or (iii) to a limited number of SDX employees, contractors, and subcontractors as required to operate, develop or improve the Online Services.
5. Professional Services
SDX shall provide the number of consulting days (“Professional Services”) if specified on the Order Form. Customer may also order Professional Services under a Statement of Work (“SOW”) signed by both parties which describes the work to be performed, applicable fees and other technical specifications. Anything created or delivered as part of the Professional Services shall be considered part of the “Online Services” as described in this Agreement, and Customer shall have a right to use such materials during the Subscription Period subject to the terms of this Agreement. Professional Service days are purchased in advance and expire within twelve (12) months from the date of the Order Form or SOW. Reasonable travel expenses will be billed as incurred. Customer and SDX shall mutually agree upon the dates the Professional Services are to be performed. Professional Services cancelled by Customer with less than fourteen (14) days advance notice shall be invoiced as if used.
6. Fees and Payment
Customer agrees to pay to SDX the fees specified in each Order Form. Unless otherwise set forth in an Order Form, Customer will be invoiced upon receipt of each Order Form or prior to the commencement of any renewal period. Except as expressly set forth herein, all payments are non-refundable and shall be made in U.K. pounds within thirty (30) days from the date of each invoice or such other period (if any) stated in an Order Form. Any amounts payable to SDX by Customer that remain unpaid after the due date shall be subject to a late charge of 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less. No provision of any Customer purchase order or other business form shall supersede the terms and conditions of this Agreement, and any such document shall be for administrative purposes only and shall have no legal effect.
Unless expressly stated otherwise, the fees stated in an Order Form do not include taxes. Customer is responsible for the payment of all taxes, duties, and levies arising from the Order Form whether or not listed on the invoice (excluding taxes based on SDX’s net income). If SDX is required to levy value-added, sales or other similar taxes based on Customer’s use or the delivery of the Online Services or other services under this Agreement, then such taxes shall be specified separately on the invoice.
8. TERM AND TERMINATION
8.1 Term. Unless earlier terminated as permitted herein, this Agreement shall continue until expiration of the latest Subscription Period specified in any Order Form referencing this Agreement. The Parties may mutually agree to extend or renew a Subscription Period by executing a subsequent Order Form.
8.2 Termination. Either party may terminate this Agreement, (and all related Order Forms) if the other party:
(i) fails to cure any material breach of this Agreement within 30 days after written notice of such breach;
(ii) ceases operation without a successor;
(iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter).
8.3 Upon any termination or expiration of this Agreement or an Order Form, SDX will cease providing the Online Services to Customer and all rights granted to Customer for the SDX TAG shall immediately cease and Customer shall:
(i) delete all copies of the SDX TAG from all Customer controlled web pages within ten (10) business days, and
(ii) pay SDX all amounts due and payable hereunder, and
(iii) upon request, provide SDX a written certification that Customer has complied with all of the foregoing obligations.
8.4 SDX, in its sole discretion, has the right to immediately suspend or terminate Customer’s subscription and refuse any and all current or future use of the Online Services at any time as a result of Customer’s breach of its obligations under Section 2 of this Agreement. In addition, SDX reserves the right to immediately, and without prior notice, delete any material which is prohibited pursuant to Section 2.1.1 (i, iv, and v).
8.5 Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement. This Section 8, and Sections 1, 2.1.3, 4, 7, 10.4, 11, 12, and 15 shall survive any termination or expiration of this Agreement
9. Technical Support
9.1 Technical support shall be provided during the Subscription Period and shall include consulting services to assist with initial installation; system configuration and user training and ongoing support. SDX will use commercially reasonable efforts to provide technical assistance or account management under this Agreement, but does not guarantee that all problems will be solved or that any item will be error-free. All such support or account management shall be provided via the Internet, e-mail, or telephone during standard support hours between 8.00am to 5.00pm Eastern Time on Monday through Friday excluding National Holidays (“Standard Business Hours”).
9.2 SDX may, from time to time, update or make certain modifications to the Online Services, including, without limitation, removing certain functionalities, changing the layout or adding new features that augment or enhance the current Online Services (“Updates”). Any such Updates, including the release of new tools and resources, shall be subject to the terms of this Agreement. Continued use of the Online Services after any such Updates shall constitute Customer’s consent to such Updates.
9.3 SDX may perform scheduled system maintenance during off-peak hours. Other scheduled and non-scheduled down times may occur. The Online Services will not be available during these times.
10. Warranties and Disclaimers
10.1 Limited Warranty. SDX warrants that during the Subscription Period, the Online Service will substantially conform to the Documentation. Customer’s exclusive remedies, and SDX’s sole liability, for any breach of the above warranty shall be to use commercially reasonable efforts to correct or provide a workaround to correct the reported non-conformity, or if SDX determines in its sole and reasonable discretion that such remedies are impracticable within a reasonable period of time, then SDX may terminate this Agreement or the applicable Order Form and shall refund to Customer the pro-rated portion of the Subscription Fee based on the number of months remaining in the Subscription Period, and Customer’s right to use the Online Service shall terminated. SDX shall have no obligation with respect to a claim unless notified of such claim within the Subscription Period.
10.2 Professional Services Warranty. SDX warrants that Professional Services will be performed with reasonable care and skill. Customer must report any breach of this warranty to SDX in writing within thirty (30) days of performance of the Professional Services in question, and Customer’s exclusive remedy and SDX’ssole obligation for a breach of the foregoing warranty shall be for SDX to re-perform the relevant Professional Services at no additional cost to Customer.
10.3 Exclusions. The foregoing Warranties shall not apply to (i) items provided at no charge; or (ii) use of the Online Service in a manner that is inconsistent with this Agreement or the Documentation.
10.4 Warranty Disclaimer. THE ONLINE SERVICES ARE PROVIDED "AS IS" AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SDX, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. SDX DOES NOT GUARANTEE THE ONLINE SERVICES WILL BE OPERABLE AT ALL TIMES INCLUDING, WITHOUT LIMITATION, DURING ANY DOWN TIME (1) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (2) CAUSED BY ANY FAILURES OF CUSTOMER’S EQUIPMENT, SYSTEMS OR LOCAL ACCESS SERVICES, (3) FOR PREVIOUSLY SCHEDULED MAINTENANCE OR (4) RELATING TO EVENTS BEYOND SDX'S CONTROL SUCH AS STRIKES, RIOTS, INSURRECTION, FIRES, FLOODS, EXPLOSIONS, WAR, GOVERNMENTAL ACTION, LABOUR CONDITIONS, EARTHQUAKES, NATURAL DISASTERS, OR INTERRUPTIONS IN INTERNET SERVICES TO AN AREA WHERE SDX OR CUSTOMER’S SERVERS ARE LOCATED OR CO-LOCATED. COMPLETE ACCURACY IN ALL ASPECTS OF CUSTOMER’S RECORDINGS OR REPORTS AT ALL TIMES ALSO IS NOT GUARANTEED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE ONLINE SERVICES.
11. Limitation of Liability
11.1 EXCEPT FOR ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, IN NO EVENT SHALL SDX OR ITS AFFILIATES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUESTIONAL LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE.
11.2 EXCEPT FOR ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF SDX ITS AFFILIATES AND SUPPLIERS, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED 100% OF THE FEES PAID AND/OR OWED (AS APPLICABLE) BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE CLAIM.
11.3 THE ONLINE SERVICE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN CONNECTION WITH HAZARDOUS OR HIGH- RISK ACTIVITIES OR WITH APPLICATIONS THAT REQUIRE FAIL-SAFE PERFORMANCE (TOGETHER, “HIGH-RISK ACTIVITIES”). HIGH-RISK ACTIVITIES INCLUDE BUT ARE NOT LIMITED TO ACTIVITIES OR APPLICATIONS RELATING TO THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, AEROSPACE OPERATIONS, OR DIRECT LIFE SUPPORT MACHINES, AND ANY OTHER ACTIVITIES OR APPLICATIONS IN WHICH THE FAILURE OF THE ONLINE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. ACCORDINGLY, WE SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF FITNESS FOR HIGH-RISK ACTIVITIES, AND SDX WILL HAVE NO LIABILITY OR RESPONSIBILITY RELATING TO CUSTOMER’S USE OF THE ONLINE SERVICE IN CONNECTION WITH HIGH-RISK ACTIVITIES.
11.4 SDX’s Affiliates and suppliers shall be beneficiaries of this “Limitation of Liability" Section of this Agreement; otherwise, no third party beneficiaries exist under this Agreement. SDX expressly excludes liability to any other third party.
12.1 Definition. “Confidential Information” means information a party (the “Disclosing Party”) considers proprietary and confidential which it discloses to the other party (“Receiving Party”) under this Agreement. Confidential Information includes, but is not limited to the Disclosing Party’s past, present and future research, development, performance information related to either party’s online products or services, business activities, pricing, financials, products, software programs, services, and technical knowledge identified as confidential at the time of disclosure or would be understood to be confidential by a reasonable person due to the nature of the information disclosed or circumstances surrounding the disclosure.
12.2 Obligations. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party will use all reasonable efforts to protect Confidential Information of the Disclosing Party from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. The Receiving Party may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement and the Receiving Party shall be solely responsible for its employees’ compliance with the terms of this Section 12. Upon expiration or termination of this Agreement for any reason, the Receiving Party will cease using the Disclosing Party’s Confidential Information and destroy all copies in its possession or control.
12.3 Exclusions. The Receiving Party’s obligations in Section 12.2 will not apply to information it can document: (i) is generally available to the public other than through breach of this Agreement; (ii) is rightfully known by the Receiving Party at the time of disclosure without any obligation of confidentiality; (iii) is rightfully disclosed to the Receiving Party by a third party without any associated obligation of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to any Disclosing Party’s Confidential Information.
The Order Form may limit the amount of pageviews captured and storage capacity permitted during the Subscription Period. In the event, Customer exceeds any such limitation, SDX shall notify Customer in writing, and Customer shall be required to either (i) pay SDX additional fees pro-rated based on the effective date of any such increase (which fees and additional capacities will be mutually agreed and set forth on a separate Order Form signed by both parties) or (ii) modify its use of the Online Service so that it is within the authorized limitations.
14. Intellectual Property Indemnity
14.1 SDX undertakes at its own expense to defend Customer or, at its option, settle any claim or action brought against Customer by a third party alleging that the possession, or use of the Online Service (or any part thereof) in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party ("Claim") and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses finally awarded against Customer by a court of competent jurisdiction as a result of or in connection with any such Claim. For the avoidance of doubt, this clause 14.1 shall not apply where the Claim in question is attributable to use of the Online Service (or any part thereof) by Customer other than in accordance with the terms of this Agreement.
14.2 If any third party makes a Claim, or notifies an intention to make a Claim, SDX’sobligations under clause 14.1 are conditional on Customer:
14.2.1 as soon as reasonably practicable giving written notice of the Claim to SDX, specifying the nature of the Claim in reasonable detail;
14.2.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of SDX;
14.2.3 giving SDX and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within its power or control, so as to enable SDX and its professional advisers to examine them and to take copies for the purpose of assessing the Claim; and
14.2.4 providing all reasonable cooperation as SDX may reasonably request to avoid, dispute, compromise or defend the Claim.
14.3 If any Claim is made, or in SDX’s reasonable opinion is likely to be made, SDX, may at its sole option and expense: (a) procure for Customer the right to continue using the Online Service in accordance with the terms of this Agreement; or (b) modify the Online Service so it is non-infringing; or if SDX determines that (a) or (b) are commercially impracticable, (c) terminate this Agreement immediately by notice in writing to Customer and refund the pro-rated portion of any pre-paid fees based on the number of months remaining in the applicable Subscription Period.
14.4 THIS SECTION 14 SETS FORTH SDX’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
15.1 Governing Law and Venue. The laws of the State of Delaware and the United States shall apply without regard to the conflict of laws provision thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the Delaware State and United States federal courts located in Wilmington, Delaware. Each party hereby agrees to submit to the jurisdiction of such courts.
15.2 Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement to any third party without the other party’s prior written consent, except in connection with a merger, acquisition or sale of all or any portion of such party’s assets or business, provided that such party’s successor entity assumes in writing all of such party’s obligations under this Agreement and agrees in writing to be bound by this Agreement. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, the parties agree that SDX may use subcontractors to perform all or part of its obligations hereunder.
15.3 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
15.4 Notices. All notices, requests, demands or communications shall be deemed effective upon personal delivery; or email confirmation of delivery receipt; or four (4) days following deposit in the mail in accordance with this paragraph. All notices provided hereunder shall be in writing and sent to the addresses set forth below, or to such other parties or addresses as either party may designate in writing to the other from time to time.
If To SimplicityDX. :
Emailed To: email@example.com
If To Customer:
15.5 Third Party Code. Customer understands and agrees that the Online Services may work in conjunction with third party products and Customer agrees to be responsible for ensuring that it is properly licensed to use such third party products.
15.6 Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorised representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.7 Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.
15.8 Force Majeure. 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 as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. Nothing in the foregoing shall be deemed to relieve Customer or its Affiliates of its obligation to pay fees owed under this Agreement.
15.9 Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favour of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to”.
15.10 Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement. This Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. In the event of a conflict between the terms of this Agreement and the terms contained in an Order Form, the terms in the Order Form shall only control if the Order Form is accepted by both SDX and Customer; otherwise, the terms of this Agreement shall control. Neither this Agreement, nor an Order Form, may be modified or amended except by a writing executed by a duly authorised representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement or an Order Form.