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Hanzo Master Services Agreement for IBM Marketplace

MSA
IBM Marketplace

UPDATED JUNE 2023

This Master Services Agreement (the “Agreement”) sets forth the terms and conditions applicable to the subscription license to the Subscription Services and related Professional Services provided by Hanzo Archives, Inc., a Delaware corporation with a principal place of business at 1050 SW 6th #1100 Portland, OR 97204 (“Hanzo”), and the Party subscribing to the license (“Client”). The offer of the Services as an Offer on the IBM Marketplace, and Customer’s purchase of the corresponding Subscription on the IBM Marketplace, constitutes each Party’s respective acceptance of this Agreement and their entry into this Agreement (defined below). Hanzo and the Client shall each be referred to as a “Party” and collectively as the “Parties”.

1.      DEFINITIONS


1.1          Affiliates means any company, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party.  For purposes of this definition “control” means the direct possession of a majority of the outstanding voting shares of an entity.


1.2          Archive Content means the Content from Client’s websites / collaboration platforms captured as part of the Services.


1.3          Client Content means (i) all Content made available by the Client or its Users to Hanzo or otherwise provided by the Client or its Users in connection with the provision of the Services and (ii) the Archive Content.


1.4          Client Equipment means all equipment, systems or facilities provided by the Client and used directly or indirectly in connection with the Services.


1.5         Confidential Information has the meaning given to it in Section 4.1.


1.6          Content means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.


1.7          Documentation means the documentation for the Subscription Service provided by Hanzo to assist in the use of the Subscription Service by the Customer.


1.8          Hanzo Content means all Content made available by Hanzo to the Client in connection with the Client’s use of the Services.  Hanzo Content does not, however, include Client Content. IBM Marketplace means the software marketplace operated by IBM as it may be updated from time to time.


1.9          Offer means either a Standard Offer or Private Offer through the IBM Marketplace.


1.10        Private Offer means a private offer specific to Client through the IBM Marketplace containing terms and conditions that differ from the Standard Offer available through the IBM Marketplace, to license the Subscription Service and provide Professional Services for a specific use capacity subject to the terms of the Private Offer.


1.11        Professional Services means implementation, training, consulting and/or custom services to be provided by Hanzo. All Professional Services will be set out and described in an Offer.


1.12        Services means the Subscription Service and any Professional Services provided by Hanzo.  


1.13        Service Level Agreement or SLA means Hanzo’s service level agreement located at https://www.hanzo.co/service-level-agreement


1.14       Standard Offer means an offer by Hanzo, as set forth on the IBM Marketplace, to license the Subscription Service and provide Professional Services for a specific use capacity subject to this Agreement, including Hanzo’s policies and procedures referenced or incorporated in the detail page.


1.15      Subscription Service means Hanzo’s proprietary subscription-based archive and data management software solutions all as more fully set out and described on the applicable Offer. 


1.16      Users means individuals who are authorized by Client to use the Subscription Service on behalf of Client. Users consist of employees, consultants, contractors and agents of Client or its Affiliates.  


1.17      Work Product means any deliverables, content, reports, analyses or documentation developed by Hanzo in the performance of any Professional Services. 

2.        SERVICES


2.1          Services  Hanzo shall provide the Client with the specific Services specified on an Offer. Any conflict between the terms and conditions set forth in this Agreement and any Offer shall be resolved in favor of the Offer. Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Hanzo regarding future functionality or features.

2.2          License Grant.  Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set out on the applicable Offer, Hanzo hereby grants to the Client, solely during the term of the applicable Offer, a non-exclusive, non-transferable (except as set out in Section 10.3) license to access and use the Subscription Service solely for the Client’s internal business purposes.  This license is restricted to use by the Client and its authorized Users and does not include the right to use the Subscription Service on behalf of any third party unless otherwise stated on the Offer in relation to Affiliates.  The Client agrees: (a) that only Users are permitted to use the Subscription Service; (b) that it is responsible for Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service from unauthorized use and/or access.  

2.3          Licensed Volume.  The Client acknowledges that access and use of the Subscription Service is licensed to the Client for use up to the data ingestion, data storage or other metric purchased by the Client and set out on the applicable Offer (the “Volume Limitations”).  In the event that the Subscription Service is used in excess of the Volume Limitations then the Client shall be obligated to pay overages to Hanzo for the usage in excess of such Volume Limitations at the rates set forth in the Offer or otherwise upgrade its volume capacity at new annual pricing by executing a new Offer or an amendment to an existing Offer.  

2.4         Affiliates Not Under Direct Offer.  If permitted in the applicable Offer, the Client may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that the Client shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates.  Any license restrictions set out on a Offer shall be deemed to apply to both the Client and its Affiliates.   Client shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates – except where the Affiliate has signed its own Offer with Hanzo for the Services pursuant to Section 2.5.

3.          FEES

3.1           Fees Client agrees to pay all fees set forth on the applicable Offer (“Fees”). Fees are based on the metrics set forth in the applicable Offer. Client shall pay all such fees in accordance with the Offer. Customer acknowledges that billing shall occur through the IBM Marketplace, or shall otherwise be invoiced by IBM. In addition to paying the applicable fees, Client shall also pay all reasonable travel and out-of-pocket expenses incurred by Hanzo in connection with any Services rendered provided that Client has pre-approved of such travel and expenses in writing in advance.  Unless otherwise expressly set forth on a Offer, Subscription Service fees are based on annual periods that begin on the subscription start date and each annual anniversary thereof.  The fees for the Subscription Service may be increased annually by the greater of (x) 3% over the prior year’s rates or (y) the percentage increase in the Consumer Price Index (“CPI”) over the prior year based on the Consumer Price Index for All Urban Users (CPI-U); US City Average; All items, not seasonally adjusted, 1982-1984 = 100 reference base published by the United States Bureau of Labor Statistics.     

4.        CONFIDENTIALITY


4.1           Confidential Information.  During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement.  The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party.  Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used.  The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information.  Client and its Users may post reviews of the Services on public websites; however, for the avoidance of doubt, it is understood and agreed that Confidential Information may not be disclosed. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights. If Client participates in Hanzo user groups with other Hanzo clients, Client agrees to be bound by the confidentiality provisions of any Hanzo user group agreements into which the Client enters, in addition to the provisions in this Section 4 (however, in the event of any conflict between such user group agreements and this Agreement, the terms of this Agreement shall control).


4.2         Exclusions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.  The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.


4.3        Injunctive Relief.  Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate.  Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

5.          WARRANTIES


5.1.        Availability Hanzo warrants that access to the Services will be available as set forth in the Service Level Agreement.  Notwithstanding the foregoing, Hanzo reserves the right to suspend Client’s access to the Subscription Service: (i) for scheduled or emergency maintenance (Client will be provided notice via the Subscription Service of any scheduled maintenance at least three (3) days  in advance and Hanzo shall schedule such maintenance to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), (ii) in the event Client is in breach of this Agreement, including failure to pay any amounts due to Hanzo (beyond any applicable notice and cure period), (iii) if Client’s use of the Subscription Service results in (or is reasonably likely to result in) damage to or material degradation of the Subscription Service that could interfere with Hanzo’s ability to provide access to the Subscription Service to other users, or (iv) if Hanzo receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires Hanzo to suspend or terminate Client and/or any authorized User’s access to the Subscription Service.


5.2          Subscription Service Warranty Hanzo warrants that during the term of any subscription for the Subscription Service, the Subscription Service will conform, in all material respects, with the Documentation.  Hanzo does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free.  Hanzo makes no warranty regarding features or services provided by third parties.  For any breach of the above warranty, Hanzo will provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Client will provide Hanzo with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  Such warranty shall only apply if the Subscription Service has been utilized by the Client and its Users in accordance with the Offer and this Agreement.  

5.3         Professional Services Warranty.  Hanzo warrants that any Professional Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set out in the Offer in all material respects.  Hanzo further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set out in the applicable Offer.   

5.4         Data Security. Hanzo shall maintain commercially reasonable security measures that are designed to, (a) ensure the security of the Client’s Confidential Information stored by or in possession of Hanzo; (b) protect against any anticipated threats or hazards to the security or integrity of the Client’s Confidential Information stored by or in possession of Hanzo; and (c) protect against any unauthorized access to or use of the Client’s Confidential Information as stored by or in possession of Hanzo. Upon becoming aware of any actual security breach to its infrastructure that may result in the unauthorized access to or disclosure of unencrypted Client Confidential Information, Hanzo shall promptly notify the Client. This notification will state in reasonable detail the Client Confidential Information at risk. Hanzo agrees to take all actions reasonably necessary under the circumstances to immediately prevent the continued unauthorized access of such information.  Hanzo further agrees that in the event of a breach of confidentiality or security, it will work in good faith and cooperate with the Client to address the breach.  Hanzo shall not be responsible or liable for any security breach caused by the Client. Upon the Client’s written request, Hanzo shall provide a copy of its most recent audit report of its security measures.  The report is to be treated as Hanzo’s Confidential Information under this Agreement and shall remain the property of Hanzo. 

5.5         No Other Warranty.  HANZO DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CLIENT’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HANZO. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CLIENT’S PURPOSES.

6.         LIMITATION OF LIABILITY

 
6.1         Limitation. Except for a Party’s gross negligence or willful misconduct, a Party’s breach of its obligations in Section 4, and a Party’s indemnification obligations in Section 9 for third party intellectual property infringement claims, (a) neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages and (b) to the fullest extent permitted by applicable law, the total cumulative liability of each Party to the other Party for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the fees actually received by Hanzo under the Offer for the Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim.  The provisions of this Agreement allocate risks between the Parties.  The pricing set forth in each Offer reflects this allocation of risk and the limitation of liability specified herein.  

7.        TERM

7.1       Term.  This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 7.2 below.  The term of each subscription for the Subscription Service shall be set out on the Offer.  Except as otherwise specified in the applicable Offer, the term of the subscription for the Subscription Service shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term. Each such renewal is subject to an annual fee increase. 

7.2      Termination.  Notwithstanding the foregoing, either Party may terminate this Agreement or any Offer (i) immediately in the event of a material breach of this Agreement or any such Offer by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  Termination of a Offer shall not be deemed a termination of this Agreement.  Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Offers then currently in effect.  All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Offer.  

7.3     Effect of Termination.  Upon any termination or expiration of this Agreement or any applicable Offer, Hanzo shall no longer provide the applicable Services to the Client and the Client shall promptly cease and cause its Users to promptly cease using the Services. The Client shall pay all fees that accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession and upon request by Client made within 30 days after the effective date of termination of the subscription, Hanzo will transfer Client Content to the Client in accordance with the file format(s), transfer process, delivery timeline, and other terms set forth in the termination assistance provisions of the Offer. After such 30-day period, Hanzo shall have no obligation to maintain or provide any Client Content and shall thereafter, unless legally prohibited, delete all Client Date in possession or under its control.

8.         OWNERSHIP; USE OF DATA; OBLIGATIONS

8.1       Subscription Service. The Client acknowledges and agrees that as between Hanzo and the Client, all right, title and interest in and to the Subscription Service (but excluding any Client Content) and including all modifications and configurations, all Hanzo Content and all of Hanzo’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Client by Hanzo in providing the Subscription Service and all derivatives thereof are and shall remain Hanzo’s or its licensors’.  During the term of this Agreement, Hanzo grants to the Client a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 10.3), royalty-free right to use, display, transmit, and distribute the Hanzo Content solely in connection with the Client’s permitted use of the Subscription Service.  Hanzo shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from the Client’s use of the Subscription Service) provided, however, that Hanzo shall not disclose any such data unless such data is in an aggregated, anonymized form that would not permit a third party to identify the data as associated with the Client or any of its Users.  

8.2        Client Content.  The Client retains ownership of all right, title and interest in and to all Client Content.  During the term of this Agreement, the Client hereby grants to Hanzo a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 10.3), royalty-free right to use, copy, display, transmit, and distribute the Client Content solely as necessary to provide the Subscription Service to the Client.  

8.3         Client Obligations The Client shall provide Hanzo with such access to the Client Content, the Client Equipment and the systems of the Client as Hanzo may reasonably require for the purpose of performing the Services, in a timely manner, and shall otherwise cooperate with Hanzo in providing such other information as may be necessary in connection with the performance of such Services and as may be reasonably requested by Hanzo and will use reasonable efforts to ensure that its third-party providers (e.g., hosting providers) cooperate with Hanzo in connection with the performance of the Services. The Client is responsible for all activities conducted under its User logins and for its Users’ use of the Services and compliance with this Agreement. Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited.  Without Hanzo’s express prior written consent in each instance, the Client and its Users shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service.  Except as expressly permitted in this Agreement, the Client shall not use the Subscription Service on behalf of any third-party or allow any third party to use the Subscription Services.  The Client shall be liable for the use of the Services and any breach of this Agreement by any of its Users.  In addition to Hanzo’s other remedies hereunder, Hanzo reserves the right upon notice to the Client to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in this Agreement.  The Client is solely responsible for all Client Content.  Hanzo does not guarantee the accuracy, integrity or quality of the Client Content.  Neither the Client nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Client Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Client Content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.  

8.4         Work Product.  The parties agree that unless otherwise expressly set forth in a Offer, Client will have a non-exclusive, non-transferable (except as set forth in Section 10.3) license to use any Work Product developed by Hanzo in the performance of any Professional Services and delivered to Client, upon Client’s payment in full of all amounts due hereunder, solely for Client’s internal use in connection with its use of the Subscription Service.  Hanzo retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Hanzo in the performance of this Agreement.

8.5          Changes to Client Sites.  For the purpose of capturing website content, Client shall notify Hanzo promptly in the event that it wishes to deploy new technologies or programming on its websites so as to allow Hanzo to determine whether such technology or programming is capable of being archived (or, if necessary, inform the Client how such technology or programming shall be modified in order to make it capable of being archived) and if additional Services are required.

8.6          Suggestions Hanzo shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client including its Users, relating to the operation of the Services. Hanzo shall not be required to provide any credit or attribution to Client or pay Client anything for such license. 

9.        INDEMNITY

9.1          Hanzo Indemnification.  Subject to Section 9.3 below, Hanzo will defend Client, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Client Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Client Indemnitees by a third party alleging that the Services or Work Product infringe or misappropriate such third party’s intellectual property rights and will indemnify the Client Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Client Indemnitees as a result of, or for amounts paid by under a court-approved settlement of such claim.  Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement or applicable law, (b) use of the Services or Work Product after Hanzo notifies the Client to discontinue use because of an infringement claim, (c) any claim relating to any Client Content or Client provided materials, (d) modifications to the Services or Work Product made other than by Hanzo (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services or Work Product with materials, software or equipment which was not provided by Hanzo, to the extent that the Client’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Hanzo with the Client’s custom requirements or specifications if and to the extent such compliance with the Client’s custom requirements or specifications resulted in the infringement.  If the Services are held to infringe, Hanzo will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect the Client against such claim without cost to the Client; (b) to replace the Services with non-infringing Services; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Offer and refund to the Client any prepaid unused fees paid to Hanzo for the infringing Services.  The rights and remedies granted the Client under this Section 9.1 state Hanzo’s entire liability, and the Client’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statute, common law or otherwise.

9.2       Client Indemnity.  Subject to Section 9.3 below, Client will defend Hanzo, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Hanzo Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Hanzo Indemnitees by a third party arising out of the Client Content and will indemnify the Hanzo Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Hanzo Indemnitees as a result of, or for amounts paid by under a court-approved settlement of such claim.

9.3         Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is materially prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).

10.        GENERAL


10.1          Entire Agreement.  This Agreement and all Offers, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating to this Agreement.  Only a written instrument that refers to this Agreement or the applicable Offer and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Offer.  Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Client shall be of no force or effect, even if the purchase order is accepted by Hanzo. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof. Neither IBM nor any of its Affiliates are a party to this Agreement and none of them will have any liability or obligations hereunder.

10.2          Insurance.  Hanzo will, during the term of this Agreement and for a period of two (2) years thereafter, maintain, at its sole expense the following insurance and limits (or the equivalent limits in applicable local currency): (i) commercial general liability insurance limits of $5,000,000 USD per occurrence for personal injury and/or property damage; and (ii) and professional liability (errors and omissions) with policy limits of not less than $5,000,000 USD, each claim, or the equivalent limits in applicable local currency.  Upon Client’s request, Hanzo will provide Client with a certificate of insurance evidencing such insurance coverages.

10.3        Assignment.  This Agreement shall be binding upon and for the benefit of Hanzo, the Client and their permitted successors and assigns.  Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void; provided that either Party may assign this Agreement and all Offers, without consent, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets by providing written notice to the other Party.  Hanzo may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Hanzo shall remain liable for the actions or omissions of such independent contractors or subcontractors.

10.4          Governing Law; Disputes.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of law provisions. The application of the United Nations convention on the Sale of Goods (CISG) shall not apply.  Any disputes between the Parties arising out of this Agreement shall be resolved as follows:  Members of the senior management of both Parties shall meet to attempt to resolve such disputes.  If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation.  Within fifteen (15) days after such written notification, the Parties shall meet for one day with an impartial mediator.  The costs and expenses of the mediator shall be shared equally by the Parties.  If the dispute is not resolved by mediation, the dispute shall be settled by binding arbitration conducted in accordance with the JAMS procedures pursuant to its Streamlined Arbitration Rules and Procedure, by a single arbitrator, in the State of Delaware.  The arbitrator shall be selected as provided in the Streamlined Arbitration Rules and Procedure.  Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort.  The arbitrator shall have no power to award damages inconsistent with this Agreement.  No discovery shall be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the Party seeking discovery. All aspects of the arbitration shall be treated as confidential.  Neither the Parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a Party shall give written notice to all other Parties and shall afford such Parties a reasonable opportunity to protect their interests.  The result of the arbitration shall bind the Parties, and judgment on the arbitrator’s award may be entered in any court having jurisdiction.  Each Party shall bear its own costs of the arbitration.  The fees and expenses of the arbitrator shall be shared equally by the Parties.  The parties agree that a party need not invoke the procedures set forth in this Section 10.4 in order to seek injunctive relief pursuant to Section 4.3.

10.5          Headings.  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. 

10.6          Relationship of the Parties Hanzo and the Client are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.  Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

10.7          Force Majeure Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

10.8         Notices.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt to the address of the Party set forth on the applicable Offer or (iii) by email to the email address set forth on the applicable Offer provided receipt of such email is confirmed.  Either Party may change its address by giving written notice of such change to the other Party.

10.9          Modifications to Subscription Service Hanzo may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.

10.10         Publicity.  The Client hereby grants Hanzo a non-exclusive license solely during the term of this Agreement to list the Client’s name and display the Client’s logo in the customer section of Hanzo’s website and to use the Client’s name and logo in Hanzo’s customer lists but only to the extent that other customers of Hanzo are also listed on such list. Any other use by Hanzo of the Client’s name, logo or trademark requires the Client’s prior written consent.

10.11         Export; Government Rights.  Both Parties will comply with all applicable export regulations.  The following provision applies only if Client is a branch or agency of the United States Government or is purchasing the Subscription Service on behalf of the United States Government. The Subscription Service and the Documentation have been developed at private expense and are sold commercially. The Subscription Service is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Certain components of the Subscription Service may also be Commercially Available Off-the-Shelf (COTS) items, as defined in FAR 2.101. The Subscription Service and the Documentation are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation.  Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in Hanzo’s standard commercial license.  Thus, the Subscription Service referenced herein, and the Documentation provided by Hanzo hereunder, which are provided to any agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations.

10.12         No Third Party Beneficiaries.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.  Notwithstanding the foregoing, Client hereby agree that the licensors of third party software to Hanzo and each Third-Party Application provider will be considered third party beneficiaries of this Agreement and will be entitled to bring a direct action against Client in the event of breach of any applicable provisions of this Agreement, pursuant to the terms and conditions of this Agreement.

10.13         Non-Solicitation.  The Parties agree that, during the term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement, each Party will not, without the prior written consent of the other Party, directly or indirectly, on its own behalf or in the service of or on behalf of others, solicit, divert, or hire away, or attempt to solicit, divert, or hire away, any person, in any capacity (employment, consulting, ownership or otherwise) who is a full or part-time employee of the other  Party provided that the foregoing restrictions shall not apply to (i) any solicitations made pursuant to general advertising (including web based such as through sites such as Indeed.com, LinkedIn etc.) or through search firms that are not directed specifically at employees of the other Party, and nothing contained herein shall preclude such Party from hiring as a result thereof, (ii) soliciting or hiring any employee who initiates discussions regarding employment without any direct solicitation by such Party, or (iii) soliciting or hiring any employee whose employment with the other Party was terminated prior to commencement of any employment discussions between the soliciting or hiring Party and such person.  The obligations of this Section 10.13 shall survive the expiration and/or earlier termination of this Agreement.

10.14          Waiver and Severability.  Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.