12.1. Entire Agreement
This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, any related exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.3. Force Majeure
In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.4. Amendment and Modification
We may change this Agreement from time to time at our discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. We will provide you with reasonable notice prior to any material amendments or modifications taking effect (as solely determined by Oncue), either by emailing the email address associated with your account on the Services or by another method reasonably designed to provide notice to you. If you access or use the Services after the effective date of the revised Agreement, such access and use will constitute your acceptance of the revised Agreement beginning at the next Renewal Subscription Period.
No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties must negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.7. Governing Law; Resolution
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.
You agree that any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be finally settled by binding arbitration in San Francisco County, California (“Arbitration”). The Parties agree that Arbitration shall solely be governed by the Federal Arbitration Act. Arbitration shall be before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association and, where appropriate, the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”). Arbitration fees and arbitrator compensation will be governed by the AAA Rules. The arbitrator’s decision shall be the final and binding for any and all matters arising under this Agreement. Without limiting the generality of the foregoing, You agree that under no circumstances will You ever be part of a class action against Oncue or its employees, contractors, shareholders, subsidiaries, affiliates, and officers. You agree that regardless of any statute or law to the contrary, any Dispute must be filed within one (1) year after such Dispute arose, after which point, it shall be barred.
You may not assign any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without our prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.9. Equitable Relief
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
We may identify you as a user of the Services and may use your name, logo, and other trademarks in our mover list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom will inure to your sole and exclusive benefit). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.
12.11. Restricted Period
During the period commencing on the Effective Date and ending one (1) year after Your last use of the Services (the “Restricted Period”), You agree to not hire or solicit, directly or indirectly, any employees or contractors of Oncue (collectively, “Personnel”). If You violate this Section, You shall owe and pay Oncue a fee equal to $40,000 for each such hire of Personnel within fifteen days of such hire; provided, further, that if You are still using the Services at the time of such breach of the preceding sentence, Oncue may immediately terminate Your use of the Services without any refund for prepaid services.
By accessing and/or using the Services, You represent and warrant that: (i) You are at least 18 years old; and (ii) You have the right and capacity to enter into this Agreement on behalf of Yourself or the entity You are entering into it on behalf of.