Voice Advantage® Service Account Agreement

Effective Date of this Policy: April 5, 2013

The following are the terms and conditions of service for the Voice Advantage® Service, a proprietary software service provided by HarQen, Inc., a Delaware corporation ("HarQen", "we", or "us"), with its main office at 300 N Corporate Dr., Suite 340, Brookfield, WI 53045 USA, which allows users to arrange, conduct and organize interviews and coordinate customer’s communications with personnel (the "Voice Advantage Service").

The website VoiceAdvantage.com or such other site from which the Voice Advantage Service or any of its features are made available from time to time is referred to as the "Site". HarQen may in its sole discretion change the internet address or location of the Site from time-to-time during the Term and shall notify you of any such change.

Please carefully read the terms and conditions of service contained herein (the "Terms and Conditions") before using the Voice Advantage Service. The Terms and Conditions together with your completion of the Subscription Form (as defined below) constitute a binding legal agreement between you and us (collectively, this "Agreement"), and you are agreeing to be bound by all of the Terms and Conditions and the Subscription Form (the completion and acceptance of each, the "Registration"). As used in this Agreement, HarQen and you are each a "Party" and collectively, the "Parties."

This Agreement governs your access to and use of the Voice Advantage Service. The Agreement is effective as of the date indicated on the Subscription Form (the "Effective Date"). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to all of the Terms and Conditions imposed by this Agreement. If you do not have the legal authority to bind your employer or the applicable entity, please do not click the "I Accept Quote and Terms" button on the Subscription Form.

The Voice Advantage Service is provided to you on the condition of your acceptance without modification of the Terms and Conditions.

  1. Account
    1. Promptly following the Effective Date, HarQen shall create an access account (the "Administrator Account") for the Customer’s account administrator identified on the Subscription Form (the "Administrator"). Customer shall immediately notify HarQen of any change to the Administrator or the Administrator’s contact information as set forth on the Subscription Form. The Administrator shall have the right to invite Customer’s employees and contractors, subject to any limitation on number of individuals set forth in the Subscription Form, to register for an account and to utilize the Voice Advantage Service (each such individual to be referred to as a "User" and, collectively, as the "Users"). Customer shall cause each User to comply with the Use Policies (found at https://voiceadvantage.com/usepolicy) and any other terms and conditions contained on the Site for the use of the Site and the Voice Advantage Service (collectively, as amended from time to time in accordance with Section 12.2, the "User Terms").
    2. To protect the Administrator Account, Customer shall ensure that Customer and Administrator keep the password to the account confidential and take full responsibility for Customer’s, Administrator’s and Users’ activities that occur in connection with the Administrator Account. If there is any breach of security or unauthorized use of the Administrator Account or the Voice Advantage Service, Customer agrees to notify HarQen immediately by sending an email to support@harqen.com.
    3. From time to time, HarQen may find it necessary to access the Administrator Account or other Users’ accounts, and Customer acknowledges and consents to such access. For instance, HarQen may access Administrator’s account for support, maintenance or security-related reasons.
  2. Services
    1. HarQen hereby grants Customer a limited, non-exclusive, non-transferable right to use and to permit Users, subject to the limitation of the number of concurrent or total Users set forth in the Subscription Form, to use the Voice Advantage Service during the Term (as defined below) in accordance with all international, national, federal, state and local laws, and the rules, regulations, guidance, guidelines and requirements in effect from time to time, including, without limitation, those laws applicable to the interviewing, screening and hiring of potential candidates as employees and other personnel (collectively, "Applicable Laws") and to the extent permitted by this Agreement. This right includes the right to access and use the online software applications provided by HarQen as part of the Voice Advantage Service through the Site (the "Software").
    2. To the extent specified in the Subscription Form (or in a separate agreement between the Parties) and at the rates set forth therein (which for the avoidance of doubt shall be deemed Fees (as defined below)), HarQen agrees to provide Customer with assistance in using the Voice Advantage Service and the Site and developing and implementing materials and participant notices and questions for use by Users through the Site and the Voice Advantage Services.
    3. HarQen may provide or develop jointly with Customer interview questions, survey forms or form templates for use by the Customer with the Voice Advantage Service ("Customer Interview Materials"). Many of HarQen’s customers use similar interview questions or cover topics that are typical in interviews. HarQen’s assistance with Customer Interview Materials will involve use of HarQen’s general knowledge and experience of interview questions, including HarQen’s own repository of example questions and interview templates ("HarQen Interview Expertise"). HarQen may use Customer Interview Materials to further improve and optimize HarQen Interview Expertise provided that HarQen does not disclose the complete Customer Interview Materials to any third party (except for HarQen’s service providers for purposes of providing the Voice Advantage Service to Customer) or disclose the fact that Customer uses any particular interview question. Customer acknowledges and agrees that HarQen makes no representations or warranties as to the Customer Interview Materials’ compliance with Applicable Law or the ability of Customer to comply with Applicable Law in its use of the Customer Interview Materials.
    4. Customer acknowledges and agrees that nothing in this Agreement shall confer on Customer any intellectual property or other rights in, or to any patents, copyrights, database rights, trade names, trademarks (whether registered or unregistered) or any other rights or licenses in respect of the Voice Advantage Service, the Software or the Site, except as specifically set forth in Section 4. Except as specifically set forth in Section 4, HarQen expressly reserves all right, title and interest in and to the Voice Advantage Service, the Software and the Site and, together with its licensors, owns all intellectual property rights in, relating to and arising out of the Voice Advantage Service, the Site or the Software.
    5. Customer agrees that it shall:
      1. Use, and ensure that the Users use, the Voice Advantage Service in accordance with this Agreement and the User Terms (as they may be amended or updated by HarQen from time to time) and be responsible for any User’s breach of this Agreement or the User Terms, as such are in effect from time-to-time;
      2. Use, and ensure that the Users use, commercially reasonable efforts to prevent unauthorized access to or use of the Voice Advantage Service and the Administrator Account, and notify HarQen promptly of any such unauthorized access or use; and
      3. Use, and ensure that the Administrator and Users use, the Voice Advantage Service only in accordance with Applicable Law. In furtherance of the foregoing, Customer agrees to comply with Applicable Law regarding the transmission of technical data exported from the United States or the country in which Customer resides and to comply with any other Applicable Law affecting the transmission or posting of content or affecting the privacy of persons.
    6. Customer acknowledges and understands that there are laws that govern the recording of telephone or other conversations. Customer, and not HarQen, is responsible for determining whether it is lawful to use any recording feature available via the Voice Advantage Service for Customer’s proposed use, with respect to the content of the interviews and calls being conducted on the Voice Advantage Service. Customer further acknowledges and agrees that in each instance when Customer or a User utilizes any recording feature available as part of the Voice Advantage Service, Customer shall and shall cause its Users to provide notice to and obtain the prior consent of each person who is being recorded to such recording and to the sharing of such recording with appropriate personnel within Customer and, if applicable, with any client of Customer on behalf of which Customer is conducting interviews using the Voice Advantage Service. Customer represents, warrants, covenants and agrees that Customer shall not use the Voice Advantage Service to record any conversation except where it is legal under Applicable Law.
  3. Fees and Payments
    1. Subject to Section 11, Customer agrees to pay all applicable fees as described in the Subscription Form (the "Fees").
    2. Unless otherwise specified in the Subscription Form, all Fees shall be calculated and payable in U.S. Dollars. Customer agrees to provide HarQen with valid and updated credit card information, or such other payment means as HarQen agrees in the Subscription Form. If Customer provides a credit card, Customer authorizes HarQen to charge such credit card for all services listed in the Subscription Form, and any renewal subscription term(s) as set forth herein. If Customer provides HarQen with a credit card that expires during the term of this Agreement, HarQen reserves the right to charge fees to any renewal card issued to Customer as a replacement. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Subscription Form. For any upgrade or downgrade in plan level, Customer shall be charged the new rate on Customer’s next billing cycle as specified in the revised Subscription Form. If the Subscription Form specifies that payment shall be by a method other than a credit card, HarQen shall invoice Customer in advance. Unless otherwise stated in the Subscription Form, invoiced charges are due fifteen (15) days from the invoice date.
    3. Except for charges under reasonable and good faith dispute, in the event of late payment of the Fees, HarQen shall be entitled to charge Customer a late fee at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Applicable Law, whichever is lower, from the date such payment was due until the date actually paid.
    4. Unless otherwise stated, HarQen’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with the provision of services under this Agreement. If HarQen has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.4, the appropriate amount shall be invoiced to and paid by Customer, unless HarQen is provided a valid tax exemption certificate authorized by the appropriate taxing authority. HarQen is solely responsible for taxes based on HarQen’s income, property and employees.
  4. Ownership Of Data; Information Rights And Responsibilities; Termination Assistance
    1. Subject to Customer’s payment of all Fees and other charges due pursuant to this Agreement, Customer shall be the owner of all data recorded or otherwise created or stored in the course of the use of the Voice Advantage Service by the Users or the Administrator (collectively, the "User Data"); provided, however, that User Data shall not include any Customer Interview Materials. Customer gives HarQen permission to record, copy, transmit, use, store, modify and otherwise use the User Data, but only for purposes of providing the Voice Advantage Service to Customer and optimizing the Voice Advantage Service. User Data shall not be disclosed by HarQen to any third parties except to HarQen’s service providers. HarQen shall be responsible for each of its service provider’s use of the User Data, including ensuring that such service providers comply with the restrictions in this Agreement with respect to the User Data. In addition, Customer gives HarQen permission to search User Data in order to create Aggregate Analytics Data (defined below) from the User Data. Aggregate Analytics Data is created by HarQen independently of the Voice Advantage Service and the Parties agree that HarQen is the sole owner of the Aggregated Analytics Data. "Aggregate Analytics Data" means (a) aggregated data elements derived from Customer’s and User’s use of the Voice Advantage Service and the Customer Interview Materials that do not identify any individual, company or business or disclose the subject matter of or recorded responses included in User Data and (b) any results from analysis of the User Data. For example, personal information such as names, email addresses and telephone numbers are not included in Aggregate Analytics Data (because they identify individuals or their companies), but call metrics such as interview duration, interview completion rates, response rates to interview questions, frequency of interview questions and geographic locations of interview respondents constitute Aggregate Analytics Data.
    2. In the event that this Agreement is terminated by either party in accordance with Section 11, and provided that Customer is not in default under this Agreement at the time of Customer’s request, Customer may request that HarQen assist Customer in the transfer of the User Data to another party, which transfer shall be at made Customer’s sole expense. If Customer does not make such a request within thirty (30) days after termination, HarQen shall have the right to delete or otherwise destroy all User Data which are in its possession.
    3. HarQen shall own all rights, title and interest to and be entitled to retain all Aggregate Analytics Data indefinitely following the Term.
  5. Privacy
    1. HarQen’s Privacy Policy is available at https://voiceadvantage.com/privacy_policy. By using the Voice Advantage Service, Customer acknowledges the terms of HarQen’s Privacy Policy and Safe Harbor Policy. Customer further acknowledges and agrees that the terms of the Privacy Policy may be revised by HarQen at any time without notice and Customer, the Administrator and the Users shall be subject to such revised policy.
  6. Confidentiality
    1. Each Party shall during the Term of this Agreement and for three (3) years thereafter keep all Confidential Information (as defined below) of the other Party confidential, and shall not use such Confidential Information, except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without such other Party’s prior written consent. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other Party.
    2. The term "Confidential Information" shall mean any information disclosed by one Party to the other Party in connection with this Agreement, which is disclosed in writing or orally and is identified as "Confidential" or which a Party should reasonably believe is treated as confidential by such other Party. For the avoidance of doubt, all User Data, except for any Aggregate Analytics Data, shall be deemed the Confidential Information of Customer. In addition, any other information disclosed by HarQen that relates to HarQen, the Voice Advantage Service or the Software that is not otherwise publicly known shall be deemed the Confidential Information of HarQen. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) was developed independently by the receiving Party without any use of the Confidential Information of the other Party or by employees of the receiving Party who have no knowledge of such Confidential Information; (ii) becomes known to the receiving Party, without restriction, from a third party without breach of this Agreement or any other obligation of confidentiality; (iii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the receiving Party; (iv) was rightfully known to the receiving Party as demonstrated by prior written records at the time of disclosure; or (v) is disclosed by agreement of the Parties or pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that in the case of clause (v), the receiving Party shall provide prompt notice thereof to the other Party and shall use commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information.
  7. HarQen’s Obligations
    1. HarQen shall:
      1. provide reasonable email support during HarQen’s standard business hours (i.e., 9am -5pm Central Time) on days other than a Saturday, Sunday or public holiday in the State of Wisconsin at no additional charge; and
      2. use commercially reasonable efforts to make the Voice Advantage Service available for Customer’s use, except for: (i) planned downtime (of which HarQen shall endeavor to give Customer at least four (4) hours’ notice); or (ii) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or Internet service provider failures or delays. Notwithstanding the foregoing, while HarQen shall use commercially reasonable efforts to keep the Voice Advantage Service accessible, HarQen does not guarantee, and shall have no liability for, any unavailability of the Voice Advantage Service: (a) caused by outages to any public Internet backbones, networks or servers; (b) caused by any failures of Customer’s equipment, systems or local access services; (c) for previously scheduled maintenance, or (d) relating to events beyond HarQen’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where HarQen or Customer’s servers are located or co-located. As HarQen does not control the security of the Internet or other networks Customer uses to access the Voice Advantage Service, HarQen cannot be, and is not responsible for, the security of information that Customer chooses to communicate to or via the Voice Advantage Service or HarQen while it is being transmitted. In addition, HarQen is not responsible for any data lost during transmission.
  8. Indemnification
    1. Customer agrees to indemnify, hold harmless and defend HarQen, at Customer’s expense, against any and all third party claims, actions, proceedings, and suits brought against HarQen 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) incurred by HarQen or any of its officers, directors, employees, agents or affiliates, arising out of or relating to: (i) Customer’s breach of any representation, covenant, condition or other term of this Agreement; (ii) Customer’s use of the Voice Advantage Service, including any and all content created, utilized or made available by Customer on or through the Voice Advantage Service; and (iii) the use by Customer or any of its Users of the Voice Advantage Service in an unauthorized or illegal manner. In such a case, HarQen shall provide Customer with written notice of such claim, suit or action. Customer shall cooperate as fully as reasonably required in the defense of any claim.
    2. HarQen shall defend and indemnify Customer at HarQen’s sole expense against, and shall pay the costs and damages made in settlement or awarded as a result of, any action brought against Customer based on a claim of any third party for infringement of patents, trademarks or copyrights or misappropriation of trade secrets with respect to any item of the Voice Advantage Service. HarQen shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Customer shall provide written notice of the third party claim, but failure to deliver such notice shall not impact HarQen's obligations unless the delay is material and has been prejudicial to the defenses to the third party claims.
  9. Disclaimer Of Warranties And Limitation Of Liability
    1. THE VOICE ADVANTAGE SERVICE, THE SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THE VOICE ADVANTAGE SERVICE OR THE SITE ARE PROVIDED BY HARQEN ON AN "AS IS" AND "AS AVAILABLE" BASIS.
    2. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, HARQEN DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE VOICE ADVANTAGE SERVICE OR THE AVAILABILITY OR OPERATION OF THE VOICE ADVANTAGE SERVICE OR THE SITE OR ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HARQEN DOES NOT WARRANT THAT THE VOICE ADVANTAGE SERVICE, THE SITE, INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THE VOICE ADVANTAGE SERVICE OR THE SITE, OUR SERVERS OR E-MAIL SENT FROM HARQEN SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
    3. HARQEN DOES NOT WARRANT THAT CUSTOMER’S USE OF THE VOICE ADVANTAGE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR THAT THE VOICE ADVANTAGE SERVICE SHALL MEET CUSTOMER’S REQUIREMENTS. HARQEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE VOICE ADVANTAGE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, SUSPENSIONS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
    4. CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF THE VOICE ADVANTAGE SERVICE AND THE SITE IS AT CUSTOMER’S SOLE RISK.
    5. HARQEN SHALL NOT BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT OR IN TORT, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, AND CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE VOICE ADVANTAGE SERVICE OR THE SERVICES PROVIDED UNDER THIS AGREEMENT.
    6. Customer is solely responsible for statements, content, data or information contained in or created by any use by or on behalf of the Users of the Voice Advantage Service, including the use of any materials provided pursuant to Section 2.2 or Customer Interview Materials provided pursuant to Section 2.3 (collectively, the "Content"). HarQen shall not be liable for and specifically disclaims any liability for or relating to: (i) any Content and any actions resulting from Customer’s use of the Voice Advantage Service or use of the Content; or (ii) any damages of any kind arising from the use of the Voice Advantage Service or the Site or from any information, content, materials, products (including the Software) or services included on or otherwise made available to Customer through the Voice Advantage Service or the Site, or any interruption to or suspension of the Voice Advantage Service, the site or the Administrator Account.
    7. Except for any indemnification obligations pursuant to Section 8.2, in no event shall HarQen’s total liability for any claim or series of related claims arising under or related to this Agreement exceed the amounts actually paid by or due from Customer in the twelve (12) month period immediately preceding the event giving rise to such claim.
    8. Neither Party may bring any action arising out of any transaction (other than failures to pay) under this Agreement more than one (1) year after such cause of action accrues.
    9. Customer’s rights under Section 8.2 and this Section 9 constitute its sole and exclusive remedies and HarQen’s sole and exclusive obligations with respect to any breach of this Agreement or any claims of any third parties with respect to Customer’s use of the Site, the Voice Advantage Service or any other materials provided pursuant to this Agreement.
  10. U.S. Government Rights
    1. Notwithstanding anything in this Agreement or any other agreement, if the use of the Voice Advantage Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), consistent with the treatment of commercial computer software under the Federal Acquisition Regulation ("FAR") and the Department of Defense FAR Supplement ("DFARS"), the U.S. Government’s rights in the Voice Advantage Service, the Software or any other technology in which HarQen has an interest, including the U.S. Government’s rights to use, modify, reproduce, release, perform, display or disclose such technology, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
  11. Term And Termination
    1. The term of this Agreement shall start on the Effective Date and continue for the term indicated in the Subscription Form (the "Initial Term"). Unless otherwise indicated in the Subscription Form, the Agreement shall automatically renew for successive one (1) year renewal terms (each a "Renewal Term" and, together with the Initial Term, the "Term"), unless either Party gives the other written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
    2. Customer may terminate this Agreement without cause by providing ninety (90) days’ written notice to HarQen.
    3. Without prejudice to any rights that have accrued under this Agreement or any of its other rights or remedies, HarQen may at any time suspend any or all of the services provided under this Agreement, disable Customer’s passwords, account and access to all or part of the Voice Advantage Service or terminate this Agreement with immediate effect by giving written notice to Customer if: (i) Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment; or (ii) Customer breaches any material term of this Agreement, including for the avoidance of doubt the User Terms, and such breach is not cured within thirty (30) days after notice from HarQen of such breach. Notwithstanding the foregoing, HarQen shall have the right to immediately suspend the Voice Advantage Service or terminate this Agreement, upon delivery of notice to Customer, in the event of (a) a material breach by Customer or any of the Users of the User Terms, (b) use by Customer or any of the Users of the Voice Advantage Service in a manner that HarQen reasonably believes to be a violation of Applicable Law, or (c) use by Customer or the Users of the Voice Advantage Service in a manner that HarQen reasonably believes to be harmful to HarQen or to other Users. HarQen shall not be under any obligation to provide any services or to make the Voice Advantage Service available to Customer while any invoice(s) remain unpaid or while Customer remains in breach of any provision of this Agreement.
    4. Without prejudice to any rights that have accrued under this Agreement or any of its other rights or remedies, Customer may terminate this Agreement with immediate effect by giving written notice to HarQen if HarQen breaches any material term of this Agreement and such breach is not cured within thirty (30) days after notice by Customer to HarQen of such breach.
    5. Upon any termination of this Agreement: (i) neither Customer nor the Users shall have access to the Voice Advantage Service or the User Data except as provided in Section 4; (ii) any outstanding balance payable by Customer to HarQen shall become immediately due and payable; (iii) all rights, licenses and permissions granted under this Agreement shall terminate.
    6. Unless terminated by HarQen for breach, any prepaid and unused amount left on Customer’s account upon the date of termination shall be refunded.
    7. The following Sections shall survive the expiration of the Term or earlier termination of this Agreement: Section 2.3, Section 2.4, Section 3 (with respect to any accrued but unpaid Fees), Section 4, Section 6, Section 8 (solely with respect to any claims for indemnification which have accrued prior to the end of the Term), Section 9, Section 11.5, Section 11.6 and Section 13.
  12. Modifications To User Terms and This Agreement
    1. Except to the extent otherwise specified in this Section 12, in no event shall this Agreement be amended, modified, superseded or cancelled other than by an instrument in writing signed by each of the Parties. HarQen reserves the right to change or modify the terms of this Agreement, including the Fees and pricing set forth in the Subscription Form, by serving Customer notice in writing not less than forty-five (45) days before the end of the Initial Term or any Renewal Term. Unless Customer gives notice to HarQen in writing of Customer’s intention to terminate this Agreement in accordance with the provisions of Section 11 within the time periods specified in Section 11, Customer shall be deemed to have accepted any changes or modifications to the terms of this Agreement upon such renewal and such revised terms shall be deemed to be incorporated into this Agreement from the date of renewal.
    2. From time-to-time during the Term and in HarQen’s sole discretion, HarQen may modify the User Terms by providing notice to Customer in accordance with Section 13.6.
  13. Miscellaneous
    1. HarQen shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the Parties in writing) represents the entire agreement between Customer and HarQen concerning its subject matter, and supersedes all prior agreements and representations between the parties. In the event of any inconsistency between the terms of the Subscription Form and this Agreement, this Agreement shall prevail.
    2. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
    3. This Agreement shall be governed by and construed under the laws of the State of Delaware without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Delaware law, rules, and regulations, Delawre law, rules and regulations shall prevail and govern. Each Party agrees to submit to the exclusive and personal jurisdiction of the courts located in the state of Delaware. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Software may be controlled by U.S. export regulations, and it may be not be used by or in embargoed countries except in compliance with such regulations.
    4. A waiver of any default is not a waiver of any subsequent default and shall not be deemed an amendment to this Agreement.
    5. Customer may not assign, delegate or otherwise transfer any of Customer’s rights or obligations hereunder without HarQen’s prior written consent, except pursuant to a transfer of all or substantially all of its business and assets, whether by merger, sale of assets, sale of stock or otherwise. Upon such latter events, prior written notice of such transaction shall be delivered to HarQen at least thirty (30) days in advance. Any assignment of this Agreement by Customer must be made in its entirety, including all rights and obligations. The relationship between HarQen and Customer is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties hereto.
    6. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be delivered in person, or by certified first-class mail return receipt requested, or by nationally recognized overnight courier with signed receipt addressed to the party at its address(es) set forth on the signature page below (or such other address as either party may designate in writing by notice in accordance with this Section). Notice shall be effective upon receipt. All notices sent pursuant to the terms of this Section shall be deemed received (a) if personally delivered, then on the date of delivery; (b) if sent by overnight, express courier, then on the next business day immediately following the day sent; or (c) if sent by registered or certified mail, then on the earlier of the third business day following the day sent or when actually received. Notwithstanding the foregoing, any notice required to be given by HarQen pursuant to Section 5.1 or Section 12.2 shall be deemed given immediately upon the posting thereof at https://voiceadvantage.com/usepolicy in the case of these Terms and Conditions and at the web addresses set forth in Section 5.1 in the case of any applicable policies.
    7. In addition to the actions specifically provided for elsewhere in this Agreement, each of the Parties hereto will cooperate with each other and use commercially reasonable efforts to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under Applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement.
    8. Except where the context requires otherwise, whenever used the singular includes the plural, the plural includes the singular, the use of any gender is applicable to all genders and the word "or" has the inclusive meaning represented by the phrase "and/or." Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to calendar days. The headings of this Agreement are for convenience of reference only and do not define, describe, extend or limit the scope or intent of this Agreement or the scope or intent of any provision contained in this Agreement. The term "including" or "includes" as used in this Agreement means including, without limiting the generality of any description preceding such term.