GENERAL TERMS AND CONDITIONS
These General Terms and Conditions, hereby incorporated with the Purchase Agreement between eDynamic LP and the Customer, establish the terms and conditions under which eDynamic agrees to provide Customer with access to the Courses identified in the Purchase Agreement. Capitalized terms used but not defined in these General Terms and Conditions have the meanings assigned to them elsewhere in the Agreement. The parties agree as follows:
1. License and Services
1.1 License. eDynamic hereby grants Customer a personal, non-exclusive, non-transferable license (the “License”) during the Term of the Agreement to use the materials included in the Courses that are made available by eDynamic to Customer to teach students of Customer, including, without limitation, all applicable notes, transcripts, lesson plans, exercises, animations, and any updates to any of the foregoing that are made available by eDynamic to Customer (collectively, the “Licensed Materials”). Customer shall restrict use of the Courses and Licensed Materials to Authorized Users and shall not use the Courses or Licensed Materials to teach or give access to in any way to any students and/or any other person or entity other than the Authorized Users. By mutual written consent of the Parties, an amendment to the Purchase Agreement can be provisioned to alter or add to the Authorized Users who may access the courses. Customer shall assign a unique login to each Authorized User and shall not allow Authorized Users or other students of Customer and/or any other person or entity to share logins. Customer shall maintain a record of each Authorized User, the date upon which such Authorized User is granted access to any of the Courses, and the date upon which such Authorized User’s access to the Courses is suspended. All such records shall be made immediately available to eDynamic upon eDynamic’s request or within a period of no more than five (5) business days from eDynamic’s request for purposes of verifying any amounts due under this Agreement.
1.2 Limited Purpose. The Licensed Materials shall be used by Customer solely to teach students who are enrolled with Customer as Authorized Users and shall not be sold, leased, sublicensed, transferred, posted, published, transferred, communicated, disseminated, distributed, or otherwise made available to any third party outside of the learning institution of Customer. Customer shall not allow any third party to use the Licensed Materials, including, without limitation, any affiliate of Customer or any vendor of Customer, and shall not use the Licensed Materials as a service bureau. Unless limited elsewhere in the Agreement, Customer may teach an unlimited number of Authorized Users using the Licensed Materials.
1.3 Permitted Course Revisions. Customer has the right to make revisions to the Licensed Materials for the sole purposes of reasonable course migration and standards alignment and integrating such Licensed Materials with Customer’s LMS, provided that Customer shall notify eDynamic of any such revisions within five (5) days of making such revisions and provide eDynamic with a copy thereof within five (5) days upon the request of eDynamic. eDynamic shall provide, at the Customer’s request, reasonable assistance to Customer with respect to passwords or other digital rights management mechanisms installed or controlled by eDynamic to facilitate the making of such revisions by Customer. Notwithstanding anything else contained in this Agreement, eDynamic shall have no responsibility or liability for any reason with respect to any Licensed Materials that have been subject to revisions. Customer shall indemnify and defend eDynamic, its parents, affiliates and subsidiaries, and their respective officers, directors, employees, contractors, and agents and their successors and assigns from any and all claims, actions, damages, expenses, obligations, losses, liabilities, and liens imposed on, incurred from, or asserted related to the revisions or arising therefrom.
1.4 Other Course Revisions. Except as expressly set forth in Section 1.4, Customer will not modify the Licensed Materials or create, author, or develop any derivative works thereof or permit any other third party to do so. If Customer desires eDynamic to revise any Licensed Materials for any purpose not set forth in Section 1.4, Customer shall request such revisions in writing from eDynamic, and eDynamic shall have the option, at its sole discretion, to make such revisions. If eDynamic determines to make and provide revisions, the pricing of such revisions will be separate from, and in addition to, the pricing terms of this Agreement, and the pricing, extent and timing of such revisions shall be subject to each party’s prior agreement.
1.5 Intellectual Property Ownership. As between the parties, the parties agree that the Licensed Materials and all revisions, modifications, updates, and derivatives of any kind to any of the Licensed Materials (electively, the “Derived Materials”) conceived, created, authored, or developed pursuant to this Agreement, whether by or for Customer, by eDynamic, or otherwise, shall be exclusively owned by eDynamic. Customer hereby assigns and agrees to assign all intellectual property rights (including moral rights) in, to and as embodied by any of the Derived Materials to eDynamic. Customer shall, both during and after the Term, provide such information and assistance, perform such actions, and sign such further documents as are reasonably required to evidence such assignment or to register, protect, maintain, defend, and enforce any such intellectual property rights. Any Revised Materials shall be deemed to be Licensed Materials for purposes of this Agreement. Customer shall not develop or offer any courses with titles or subject matter similar to the Courses during the Term.
1.6 U.S. Government Entity Commercial Item Rights. The Licensed Materials are commercial items, developed at private expense. Any commercial item, including be not limited to, software, online services, documentation, reports, data models, technical data, processes, programs, designs, and/or concepts furnished hereunder as part of the Licensed Materials is subject to the terms set forth in this License. The commercial license rights in this License strictly govern the use, reproduction, or disclosure of the software, online services, data, and documentation by any U.S. Government entity, U.S. Government agency, U.S. Government instrumentality, or U.S. Government contractor of any tier, to the extent the commercial license terms and conditions are consistent with federal law. Rights, access, and usage shall be consistent with FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202 as applicable. The Licensed Materials are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at FAR 52.227-19, as applicable. Provisions that are inconsistent with law or regulation will not apply to the narrowest extent possible.
1.7 Customer Support. If Customer is not using a Hosting Provider, eDynamic will provide reasonable technical and curriculum related support to Customer related to the initial, first installation and integration of Licensed Materials onto Customer’s LMS. Such support shall not exceed eight hours in total. Customer has or shall otherwise obtain the expertise necessary to install and integrate the Licensed Materials into Customer’s LMS, and Customer shall be solely responsible for all costs associated therewith. Any and all other technical or curriculum support shall only be provided at the discretion of eDynamic and at the expense of Customer. The parties shall agree in writing on the pricing, scope, and other terms of any such additional support. Notwithstanding the foregoing, eDynamic may provide corrections to gradebook answers, factual errors, and other mistakes from time to time at its sole discretion.
1.8 Account Management. eDynamic will assign an account manager to Customer, at no charge, to serve as a primary in-office contact and oversee Customer’s usage of Licensed Materials. Customer shall be responsible for user account registration, creation and management of user accounts. Authorized User registration, grading and record keeping shall be the sole responsibility of the Customer.
2. Payment
2.1 Pricing; Payment Schedule and Terms. In consideration for the License, Customer shall pay to eDynamic the Fees set forth in the Purchase Agreement within the period defined on the Purchase Agreement from any invoice thereof. Unless otherwise specified in the Purchase Agreement, payment of all Fees will be due and payable within thirty (30) days from the date of any written invoice of eDynamic. If any portion of any amount payable to eDynamic under this Agreement is not paid when due, Customer shall owe to eDynamic, in addition to such past due amount, the following: (i) a one-time late payment penalty in an amount equal to five percent of such past due amount; and (ii) interest on such past due amount, until paid, at the annual rate of twelve percent, with such interest compounding monthly.
2.2 Additional Learning Materials. The Licensed Materials may require Authorized Users to obtain additional learning materials, software, or equipment not provided under this Agreement, including as may be identified in the course syllabus or in the Licensed Materials. In such case, Customer will be required to obtain such additional learning materials and equipment from a third-party at Customer’s own expense.
2.3 Taxes. All fees payable under the Agreement do not include any excise tax and customs duties, federal, provincial or local taxes. Customer will be solely responsible for payment of all applicable excise taxes, customs duties, federal, provincial or local taxes (other than those based on the net income of eDynamic).
2.4 Audits. Customer will allow and obtain for eDynamic reasonable access (including via provision of a login) to audit Customer’s records and Customer’s use of the Licensed Materials on Customer’s LMS and through the Hosting Services, in each case to monitor Customer’s compliance with the terms of this Agreement. eDynamic may request reports regarding usage of Licensed Materials from Customer and Customer will provide and send such reports to invoicing@edynamiclearning.com promptly upon eDynamic’s request and in any event no longer than 5 business days from eDynamic’s request. eDynamic shall not retain any personally identifiable end user information that may be obtained as a result of any such audits after verification of such compliance. If any such audit identified any noncompliance by Customer or Customer’s Hosting Provider, Customer shall promptly remedy such noncompliance and reimburse eDynamic for the cost of any such audit.
3. Publicity
3.1 Press Releases. Except as otherwise required by applicable laws, any press releases or other public disclosures related to Licensed Materials or this Agreement, whether individual or joint, and the release date thereof, must be reviewed and approved by both parties before publication.
4. Customer Obligations
4.1 Compliance with Laws. Customer is granted the rights to use the Licensed Materials and shall not export or re-export, directly or indirectly (including via remote access), the Licensed Materials, documentation or other information, materials, or services provided by us hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. It shall be the Customer’s responsibility to comply with the latest United States export regulations, and shall defend and indemnify eDynamic and our suppliers from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) arising out of any claim that the Licensed Materials, documentation, or other information, materials, or services provided by eDynamic hereunder were exported or otherwise accessed, shipped or transported in violation of applicable laws and regulations. Customer shall comply with all laws, legislation, rules, regulations, and governmental requirements with respect to the Licensed Materials, and the performance by Customer of Customer’s obligations hereunder, of any jurisdiction in or from which Customer directly or indirectly cause the Licensed Materials to be used or accessed. In the event that this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
4.2 System Requirements. Customer shall be solely responsible for ensuring that teachers and students have: (i) a suitable Internet connection; (ii) access to a computer that meets the minimum hardware and software requirements specified by eDynamic (”Technology Requirements”), including, without limitation, the software requirements set forth in the Purchase Agreement; and (iii) personal email accounts. Customer acknowledges and agrees that eDynamic is not able to, and does not, provide support to Customer, teachers, or students with respect to their Internet connection, computer hardware, computer software, or personal email accounts.
4.3 Hosting Services. If Customer uses the Hosting Services to access the Licensed Materials, the Customer has satisfied itself with respect to the appropriateness of the Hosting Services and confirms that the Hosting Services comply with Customer’s requirements and legal obligations, including but not limited to privacy and confidentiality obligations. The Customer further acknowledges that the performance and throughput of the internet connection and the quality of the Hosting Services cannot be guaranteed by eDynamic, and variable connection performance may result in application response variations. Customer hereby acknowledges that the Hosting Services are not owned, operated, managed by, or in any way affiliated with eDynamic, or any of its affiliates, and that it is a separate network of computers independent of eDynamic. Access to the Hosting Services is dependent on numerous factors, technologies and systems, which are beyond eDynamic’s authority and control. The Customer acknowledges that eDynamic cannot guarantee that the Hosting Services will meet the level of up-time or the level of response time that the Customer may need to access the Licensed Materials. The Customer agrees that its use of the Hosting Services and the internet is solely at its own risk, and is subject to all applicable local, state, national and international laws and regulations.
4.4 Passwords. Customer, Teacher Sub-Licensees and/or Authorized Users will use passwords to access Licensed Materials. Customer agrees to comply with eDynamic’s password policies and procedures including as relating to the issuance, protection and administration of such passwords. Customer will ensure that only its support staff, teachers, administrators, and students shall have access to Licensed Materials.
4.5 Feedback/Monitoring. Customer agrees that eDynamic may use their feedback, suggestions, or ideas in any way, including in future modifications of the Licensed Products, other products or services, advertising or marketing materials. eDynamic may monitor the content from time to time. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect eDynamic or its customers, or operate the Licensed Materials properly.
4.6 Representation. Customer will not make any representations, warranties or commitments with respect to eDynamic or the Licensed Materials. Customer shall be responsible for any violation of the terms or restrictions of this Agreement with respect to the Licensed Materials by its employees, contractors, teachers, and students as if such employees, contractors, teachers, and students were parties to this Agreement.
4.7 Responsibility for Use. Customer is responsible for its use of the Licensed Materials. Customer may use the Licensed Materials only if they can form a binding contract with eDynamic. Customer’s account with eDynamic gives it access to the services and functionality that eDynamic may establish and maintain from time to time and in eDynamic’s sole discretion. eDynamic may maintain different types of accounts for different types of Authorized Users. If Customer accepts this Agreement and is using the Licensed Materials on behalf of a company, organization, government, or other legal entity, then (i) “Customer” includes you individually and that entity, and (ii) the Customer represents and warrants that they are an authorized representative of the entity with the authority to bind the entity to this Agreement and that Customer agrees to this Agreement on the entity’s behalf. Customer may use the Licensed Materials only in compliance with this Agreement, any terms entered into by Customer relating to the Licensed Materials, and all applicable local, state, national, and international laws, rules and regulations.
4.8 Communication. eDynamic may be required by law to send Customer communications about the Licensed Materials or related products. Customer agrees that eDynamic may send these communications via email or by posting them on one of eDynamic’s sponsored websites. If Customer later decides not to receive future communications electronically, please review the Privacy Statement provided on the website to review communications choices.
5. Personal Information
5.1 Use of Personal Information. Any information that an Authorized User provides to eDynamic, including first name, last name, email address, and any other information including personal information that an Authorized User may have provided, may provide, or may be collected by eDynamic in connection with their use of the Licensed Materials (“User Information”), will be collected, maintained and used in order to provide the Licensed Materials to the Customer.
5.2 Use of the Licensed Materials by Minors. In cases where the Customer has authorized or registered another individual, including a minor, to use the Customer’s account(s), Customer is fully responsible for (i) the online conduct of such Authorized User; (ii) controlling the Authorized User’s access to and use of the Licensed Materials; and (iii) the consequences of any misuse. eDynamic requires that the parents, guardian, or other authorized adult or educational institution of a minor affirmatively consent to the use of eDynamic Licensed Material by such minor. eDynamic reserves the right to provide access to the minor’s account to the minor’s parents, guardian or other authorized adult or educational institution, upon such adult’s request.
5.3 Student Data. Personal information that includes Student Data (defined below) provided to eDynamic through the use of the Licensed Materials is governed by the terms of the agreement between eDynamic and the educational institution relevant to the Customer. As between eDynamic and the Authorized User, the Authorized User and/or the Customer (educational institution) own all right, title and interest to all Student Data provided or otherwise made available to eDynamic, and eDynamic does not own, control, or license such Student Data, except so as to provide the Licensed Materials to the Authorized User and to the Customer (educational institution) that provides the products and controls Student Data from the educational records, if applicable, and as described herein. “Student Data” is any information (in any format) that is directly related to an identifiable current or former student that is maintained by a school, school district, or related entity or organization, or by eDynamic, as part of the provision of the Licensed Materials. Student Data may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g). eDynamic agrees to treat Student Data as confidential and not to share it with third parties other than as described in eDynamic’s agreement with the educational institution.
5.4 HIPAA Information. eDynamic does not warrant or provide any assurances that the use of the Licensed Materials will comply with the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). If the Customer is a health care provider, health plan, insurer, health care information clearinghouse or other entity that may be considered a “covered entity” under HIPAA or a “business associate” of a “covered entity” under HIPAA, Customer shall take all steps necessary to comply with HIPAA and shall be responsible for any applicable compliance with HIPAA. Customer agrees that they will not provide eDynamic with any protected health information (as that term is defined under HIPAA) and that eDynamic is therefore not deemed to be a business associate of Customer and/or the Customer’s institution for purposes of compliance with HIPAA.
6. Confidentiality
6.1 Definition and Treatment. Each party agrees that, during the Term of this Agreement and for two (2) years thereafter, it shall not disclose to any third party the terms or conditions of this Agreement or use or disclose any Confidential Information of the other party, except as expressly authorized herein or as required by law. The term “Confidential Information” shall mean all non-public information that either party designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential, including, without limitation, information relating to any unreleased Licensed Materials or the pricing of any Licensed Materials. Notwithstanding the foregoing, “Confidential Information” shall not include information that was known to the receiving party prior to the disclosing party’s disclosure to the receiving party, or information that becomes publicly available through no fault of the receiving party.
7. Limited Warranty and Disclaimer
7.1 Limited Warranty. eDynamic represents and warrants that the Licensed Materials are not known by eDynamic to include any material errors are believed to be correctly attributed to any authors of such Licensed Material. However, due to the large volume of factual information included in the Licensed Materials, Customer acknowledges and accepts the risk that such material errors or errors in attribution may exist. Further, Customer acknowledges and accepts the risk that technical errors may exist in the software on which the Licensed Materials are presented. Customer’s sole remedy and eDynamic’s sole liability, for any errors in the Licensed Materials, whether factual, technical, with respect to attribution, or otherwise, is to use eDynamic’s commercially reasonable efforts to correct such errors in the next error correction update provided by eDynamic. Customer also acknowledges and accepts that the Licensed Materials may include information or materials that some people may find offensive, immoral, or otherwise inappropriate for instruction. Customer shall review any Licensed Materials prior to use in instructing students and shall determine in Customer’s sole discretion and at Customer’s sole risk if Customer will use any Course included in the Licensed Materials and if such Licensed Materials satisfy any curriculum requirements or educational guidelines or regulations prior to any such use.
7.2 Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN SECTION 5.1 ABOVE, eDYNAMIC DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR ANY PARTICULAR PURPOSE. SHOULD AN INTERRUPTION TO THE PLATFORM PREVENT STUDENTS FROM COURSE COMPLETION OR ACCESS, AS RESTITUTION EDYNAMIC WILL GRANT EXTENDED ACCESS TO THE COURSE PLATFORM.
8. Indemnity
8.1 Mutual Indemnification. Each Party shall defend indemnify and hold harmless the other Party, including Affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all Claims of Third Parties, and all associated Losses, to the extent arising out of (i) a Party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (ii) a material breach by a Party of any of its representations, warranties, covenants or agreements under this Agreement.
9. Limitation of Liability and Exclusion of Certain Damages
9.1 Exclusion of Certain Damages. EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Limitation on Liability. IN NO EVENT SHALL eDYNAMIC’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY RECEIVED BY eDYNAMIC UNDER THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OR THE CAUSE OF ACTION OR ALLEGED BASIS OF THE CLAIM, AND EVEN IF THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, FAIL OF THEIR ESSENTIAL PURPOSE.
10. Term and Termination
10.1 Term. This Agreement shall commence on the Effective Date and continue for the Initial Term, unless earlier terminated as provided in this Section. At the end of the Initial Term, this Agreement shall be automatically extended for successive one (1) year terms (each such one year term being referred to herein as an “Extension Term”, and together with the Initial Term, the “Term”), unless written notice of a party’s intention to terminate is given the other party sixty (60) days prior to expiration of the Initial Term or any such Extension Term.
10.2 Termination For Cause. Either party may terminate this Agreement immediately upon written notice to the other party, if the other party: (i) has failed to make any payment when due hereunder or is otherwise in material breach of this Agreement; and (ii) has failed to cure that breach within fifteen (15) days after receipt of written notice thereof or has failed to take reasonable steps to cure such breach if it cannot be cured within such fifteen (15) day period.
10.3 Effect of Expiration/Termination. Upon the expiration or termination of this Agreement, Customer shall return to eDynamic all of eDynamic’s proprietary information in Customer’s possession, including, but not limited to, all electronic and written copies of any Licensed Materials. Upon the expiration or termination of this Agreement for any reason, Customer will ensure that all use of and access to all Licensed Materials by Customer and its employees, contractors, teachers, and students will promptly cease. Upon the request of eDynamic, Customer shall provide a certificate executed by an officer or director of Customer certifying Customer’s compliance with this Section. A final accounting will be made between the parties, and Customer will promptly pay all amounts due and owing to eDynamic, and in any event within no more than 5 business days upon receiving eDynamic’s payment request and/or invoice for final accounting payment(s).
10.4 Survival. Section 1.3, 1.4, 1.6, 2.1, 2.2, 2.4, 3, 5, 6, 7, 9, 10 and 11 will survive the expiration or termination of this Agreement.
11. Miscellaneous
11.1 Relationship of the Parties. eDynamic and Customer are independent contractors with respect to one another, and this Agreement will not be interpreted to create any agency, joint venture, employment or partnership relationship. As independent contractors, each party shall be solely responsible to pay all applicable taxes arising from all endeavours related hereto, including, but not limited to, social security, self-employment taxes and disability insurance.
11.2 Force Majeure. Each party will be excused from liability, delay, or failure in performance due to causes beyond such party’s reasonable control including without limitation, acts of God, government action, changes in laws or regulations, riots, wars, terrorism, floods, fires, and earthquakes, weather events, and disruptions in utilities or Internet services. Notwithstanding the foregoing, this provision shall not apply to any payment obligations under this Agreement.
11.3 Notices. Any notices given under this Agreement shall be delivered either by messenger or overnight delivery service or by certified or registered mail, postage prepaid and return receipt requested, to the addresses set forth on the first cover page of the Agreement or at such other reasonable address at which personal delivery may be affected of which a party may from time to time advise. Such notices shall be deemed to have been given on the day when actually received by the party to whom the notice is given.
11.4 Assignment. Customer will not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of eDynamic. eDynamic may assign this Agreement to an affiliate or pursuant to a reorganization, restructuring, merger, acquisition, or sale of substantially all assets that are the subject matter of this Agreement. Subject to the previous sentence, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assignees.
11.5 Amendment. No waiver or amendment of any provision of the Agreement will be effective unless made in writing and signed by both parties. Notwithstanding the foregoing, Customer acknowledges and agrees that eDynamic may, from-time-to-time during the Term, unilaterally update the Purchase Agreement to: (i) add or replace further Licensed Materials on reasonable notice to the Customer; or (ii) delete Licensed Materials on four (4) months written notice to the Customer. Additionally, Customer acknowledges and agrees that eDynamic may, from-timeto-time during the Term, unilaterally update the Purchase Agreement on reasonable written notice to Customer due to changes in the technical requirements for use of the Licensed Materials.
11.6 Waiver. The waiver by eDynamic of a breach or a default of any provision of this Agreement by Customer shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission to exercise or avail eDynamic of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any such right, power or privilege. No waiver of any provision of this Agreement will be effective unless it is in a signed writing.
11.7 Governing Law; Forum for Resolution of Disputes. This Agreement will be exclusively governed by and construed under the laws of the State of Texas (except to the extent federal law is controlling on the subject matter), without application of its conflicts or choice of law rules. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. All disputes brought by either party arising under this Agreement will be brought exclusively in a federal or state court of competent jurisdiction in Dallas, Texas as permitted by law, and each party hereby submits to the exclusive jurisdiction and venue in such courts and waives and waives any objection it may now or hereafter have to venue or to convenience of forum.
11.8 Entire Agreement. These General Terms and Conditions and the Purchase Agreement constitute the entire agreement between the parties with regard to the matters dealt with in the Agreement, and supersedes all prior representation, negotiations, understandings and agreements, oral or written, between the parties, with respect thereto. All purchase orders, forms of acceptance, invoices and other documentation respecting the subject matter of the Agreement will be issued or be deemed to have been issued or given by each of the parties for administrative purposes, and any and all terms and conditions contained therein will be of no force and effect except and to the extent the information contained therein is required pursuant to the Agreement.
11.9 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
11.10 No Third-Party Beneficiaries. This Agreement is for the benefit of, and shall be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement.
11.11 Costs, Expenses and Attorney’s Fees. Customer shall reimburse eDynamic for all reasonable costs (including attorneys' fees) incurred by eDynamic in collecting late payments from Customer.
11.12 Currency. All amounts in this Agreement are in US Dollars.
Last Update: March 31, 2026