12. GENERAL PROVISIONS
12.1. Interpretation. Unless a clear contrary intention appears: (a) any term defined in the singular includes the plural when required by the applicable context; (b) the headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the interpretation of this Agreement; and (c) uses of “including” mean “including, without limitation.” Any ambiguity in this Agreement will be interpreted without regard to which Party drafted this Agreement or any part thereof.
12.2. Non-Solicitation. During the Subscription Term and for one (1) year thereafter, Customer will not, and will not assist any other Party to, directly or indirectly recruit or solicit, other than by general advertisement not directed specifically to any person or company, for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by Nira. In the event of a violation of this Section 12.2, Nira will be entitled to liquidated damages equal to the compensation paid by Nira to the applicable employee or contractor during the prior twelve (12) months.
12.3. Changes. Nira may make changes or updates to the Nira Materials during the Subscription Term, including to reflect changes in technology, industry practices and patterns of system use; however, any such changes will not result in a material reduction in the level of performance or availability of the Service during the Subscription Term.
12.4. Assignment; Subcontractors. Neither Party may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other Party, except that Nira may assign this Agreement without the consent of Customer as part of a corporate reorganization, to any Nira Affiliate, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nira in its sole discretion may from time-to-time engage third parties to perform any of its obligations under this Agreement, including hosting or other services. Nira will be responsible for all such parties’ compliance with the applicable terms this Agreement.
12.5. Governing Law. If there is any dispute between the Parties arising out of this Agreement (each, a “Dispute”), then authorized representatives of each Party will negotiate in good faith to resolve the Dispute. If such representatives cannot resolve the Dispute after no less than 30 days of good faith negotiations, then either Party may pursue all available remedies exclusively in courts of competent jurisdiction in Los Angeles, California, and each Party waives all rights to challenge such venue on any theory. This Agreement will be governed by the laws of the State of California, excluding its conflicts of laws principles.
12.6. Publicity. Nira may use Customer’s name as a reference for marketing or promotional purposes on Nira’s website and in other communications with existing or potential Nira customers, investors or acquirers, subject to any written trademark policies Customer may provide Nira in writing, with reasonable advanced notice. Neither Party will issue any press release or publish any publicly available statements or documentation describing the activities taking place under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld.
12.7. Entire Agreement; Order of Precedence. All Orders are incorporated by reference into this Agreement. In the event of a conflict between the terms of this Agreement and any Order, the terms in this Agreement will prevail unless the Order expressly states otherwise. This Agreement, including all Orders, is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Nira to object to such terms.
12.8. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.9. Waivers. All waivers of rights arising under this Agreement must be made in writing by the Party waiving rights.
12.10. Notices. Any notice required or permitted under this Agreement will be effective if it is: (a) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address given in the Order, in the case of Customer, or as set forth below, in the case of Nira, and with the appropriate postage affixed; or (b) sent via electronic mail to the email address given in the Order, in the case of Customer, or as set forth below, in the case of Nira. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day an electronic mail is sent to the recipient. Notwithstanding the foregoing in this Section 12.10, any notices threatening litigation or alleging breach of this Agreement must be sent under method (a) in this Section.
12.11. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
12.12. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, then: (a) it will be severed from this Agreement; (b) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the Parties’ original intent to the fullest extent permitted by Applicable Law; and (c) this Agreement will remain in full force and effect.