Payment and Taxes

In consideration of the provision of the Services and Deliverables by Konversational, the Customer shall pay the charges as set out in a relevant SOW. All charges shall be in invoiced in Euro by Konversational and the Customer undertakes to pay such charges in Euro plus any applicable VAT. The Services and Deliverables the subject of any particular SOW shall be provided during the Term specified in clause 10.1 unless otherwise specified and set out in the SOW concerned.

Billable expenses will be billed at actuals. Expenses will be pre-approved by the Customer and will be invoiced at Konversational’s actual cost. All invoices submitted to the Customer for payment will be itemised in reasonable detail and in line with Konversational’s travel policies (as amended from time to time).

Payment for undisputed fee amounts is due by electronic transfer in full and in cleared funds, within thirty (30) days of the Customer’s receipt of each invoice to a bank account nominated in writing by Konversational. Disputed fees shall be dealt with in accordance with clause 11.2 below.

Without prejudice to any other right or remedy that Konversational may have, should any invoice (excluding disputed amounts) remain unpaid for more than 30 days:

1. the Customer shall pay interest on the overdue amount at the rate 1.5% per month compounded for the entire overdue period until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
2. Konversational may suspend all Services until payment has been made in full.

Each party will be responsible for its own income, employment, and property taxes. The parties will cooperate in good faith to minimize taxes to the extent legally permissible. Each party will provide to the other party any tax exemptions, certificates, or certification reasonably requested. All payments by the Customer under this Agreement and each SOW shall be made free and clear of and without deduction, set off for, or on account of, any taxes, or for any other reason except to the extent that the Customer is required by law to make payments subject to any taxes. The Customer will be responsible for payment of all value added taxes in connection with this Agreement. The Customer will reimburse Konversational for any deficiency relating to taxes that are the Customer’s responsibility under this Agreement.

All sums payable to Konversational under a SOW shall become due immediately on its termination in accordance with clause 10.3, despite any other provision. This clause 1.6 is without prejudice to any right to claim for interest under the law, or any such right under a SOW.

The Services shall be performed on a “Time and Materials” basis. Additional charges may apply for scope changes, change requests, delays caused by the Customer, or third parties contracted by the Customer, or events that Konversational has no control over. The hourly rate of defined within the order form applies to Irish working hours, which are 0900 to 1730, Monday to Friday, excluding Irish public holidays. Any time outside of this shall be pre-agreed with the Customer and shall be chargeable at 1.5 times the hourly rate.

The Services effort estimates provided by Konversational are indicative and dependent upon the specific requirements captured within the design phase of the project. They are also based on the Customer performing an active role in the project. Should this not be the case then the effort estimates may be subject to change, at the discretion of Konversational.

Confidentiality

Each party may have access to information (in any form) that relates to the other party’s past, present, and future research, development, business activities, products, services, and technical knowledge, which is identified by the disclosing party as confidential or reasonably understood to be confidential (“Confidential Information”). The term Confidential Information will not, however, include any information that identifies or directly relates to natural persons (“Personal Data”).

Confidential Information may only be used by the receiving party in connection with the Services for the Services and may not be copied or reproduced without the disclosing party’s prior written consent except as reasonably needed to perform its obligations under this Agreement. The receiving party agrees to protect the Confidential Information of the disclosing party in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable standard of care. Access to the Confidential Information will be restricted to Konversational and Customer personnel (including such personnel employed by their affiliates) and subcontractors engaged in the performance, management, receipt or use of the Services under this Agreement, provided such parties are bound by obligations of confidentiality substantially similar to the terms of this Agreement.

Nothing in this Agreement will prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of the Confidential Information, (iii) acquired by it from a third party which was not, to the receiver’s knowledge, under an obligation not to disclose such information, or (iv) which is or becomes publicly available through no breach of this Agreement. Konversational may retain any information which is not Personal Data related to performance of the Services and analyse and use such information in an aggregated manner.

Nothing in this clause 2 shall prohibit or restrict either party disclosing any Confidential Information to the extent to which the same is required to be disclosed by law, regulation or pursuant to an order of a competent authority, or to a professional adviser, provided the recipient provides, in the case of disclosure by law, regulation or order, the discloser with reasonable written notice prior to any such disclosure and in the case of disclosure to a professional adviser that the professional adviser undertakes to treat the Confidential Information as confidential (in terms materially the same as this clause 2).

On termination of an SOW for whatever reason, the recipient party shall return to the disclosing party, or (at the discretion of the disclosing party) destroy, all copies of Confidential Information of the other party disclosed pursuant to that SOW which the recipient party has in its possession.

Data Protection

Konversational has complied and will continue to comply with its obligations arising from the Data Protection Laws in force in Ireland from time to time to the extent that those obligations are relevant to this Agreement. For the purposes of this provision, “Data Protection Laws” means applicable data protection and privacy laws including the Data Protection Acts 1988 to 2018, the EU General Data Protection Regulation ((EU) 2016/679) and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011.

Each party will exercise commercially reasonable efforts not to disclose any Personal Data to the other party and to restrict the other party’s access to its Personal Data but, if a party is given access to the other party’s Personal Data (other than in connection with the Services), the receiving party will protect such Personal Data as required by the Data Protection Laws, including implementing and maintaining an information security program with reasonable administrative, technical, organisational and physical measures designed to secure and protect the confidentiality, integrity and availability of all Personal Data while in such party’s possession against unauthorised, unlawful or accidental access, disclosure, transfer, destruction, loss or alteration.

If Konversational requires access to the Customer’s Personal Data in connection with the Services and performing its obligations for a particular project under this Agreement the parties record their intention that the Customer shall be the data controller and Konversational shall be a data processor and in any such case:

1. the Customer acknowledges and agrees that Personal Data processed by Konversational may subject to the Data Protection Laws be transferred or stored outside the EEA for Konversational to carry out its obligations under the relevant SOW;
2. the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to Konversational so that Konversational may lawfully use, process, and transfer the Personal Data in accordance with its obligations under a relevant SOW on the Customer’s behalf;
3. the Customer shall ensure that all of the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Laws;
4. Konversational shall process the Personal Data only in accordance with the terms of these and any lawful instructions reasonably given by the Customer from time to time; and
5. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction, or damage.

Acceptance

Work will not be scheduled nor commence without a fully executed SOW between the parties describing the Services to be commenced and/or Deliverables to be provided and acknowledging that they should be provided pursuant to the terms contained herein.

All Services and Deliverables will be deemed accepted if the Customer does not reject the Services and Deliverables by providing written notice (via email) within 10 business days after delivery specifically identifying the manner in which the Services or Deliverables fail to materially comply with their applicable specifications. Deliverables will be those items created for the Customer pursuant to the relevant SOW.

Intellectual Property

All data, information, text, graphics, photos, designs, trademarks, logos or other artwork and materials provided to Konversational by the Customer under this Agreement (“Customer IP”) are and shall remain the sole and exclusive property of the Customer or its third-party licensors and the Customer shall obtain, at its own expense, any relevant consents and licences necessary for Konversational to use the Customer IP to perform the Services and provide the Deliverables under this Agreement. The Customer hereby grants to Konversational, during the term of this Agreement, a non-exclusive, fully paid, non-transferable, limited licence to access or otherwise use and permit Konversational’s subcontractors to access, or otherwise use the Customer IP, solely for the purposes of providing the Services under this Agreement.

Intellectual Property. Konversational is in the business of providing applications based off of technology platforms and consulting services, drawing upon the knowledge, understanding, and expertise, that Konversational has gained in the course of working with other customers. Konversational shall have a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right to use any suggestions, enhancements, recommendations, or other feedback provided by the Customer and its users relating to the applications, technology platform or services.

Pending final payment, Konversational will, subject to any restrictions applicable to any third-party materials embodied in the Deliverables, grant to the Customer a perpetual, worldwide, non-transferable, non-exclusive, irrevocable (other than for non-payment) right and licence to use, copy, modify and prepare derivative works of the Deliverables for purposes of Customer’s and its affiliated companies’ internal business only. Upon final payment, Konversational hereby grants to the Customer a perpetual, worldwide, non-transferable, non-exclusive, irrevocable right and licence to use, copy, modify and prepare derivative works of the Deliverables for purposes of Customer’s and its affiliated companies’ internal business only. All other rights in the Deliverables remain in and/or are assigned to Konversational. Rights in all intellectual property of Konversational existing prior to the Services, used in the Services, developed separately, or licensed to Konversational by third parties and used in the Services, and any enhancements or modifications to the same, are the sole and exclusive property of Konversational (“Konversational IP”). Konversational IP embedded in Deliverables may not be used separately or beyond the licence rights noted above.

Subject to obligations of confidentiality in clause 2, each party will be free to use the concepts, techniques and know-how retained in the unaided memories of those involved in the performance or receipt of the Services. In no event will Konversational be precluded from independently developing for itself, or for others, anything, whether in tangible or non-tangible form, which is competitive with, or similar to, the Deliverables provided and to the extent that they do not contain Customer Confidential Information.

Within ten (10) business days of termination of this Agreement for any reason, Konversational will return any Customer property in Konversational’s possession to the Customer (subject to retaining copies of any information required for its internal record keeping requirements).

Third-party intellectual property, such as the licensing of third-party assets or third-party components, may require additional terms of usage, which will be addressed in a SOW where applicable. Each party hereby warrants that any instructions given in relation to the other’s use of any third-party item supplied directly or indirectly by it shall not cause the other party to infringe any third party’s intellectual property rights in such item.

Warranties

Konversational warrants that its Services will be performed with reasonable skill and care, in accordance with this Agreement.

In addition, each party warrants that (i) upon its execution, this Agreement will not materially violate any term or condition of any agreement that such party has with any third party; and (ii) the officer(s) executing this Agreement are authorised to bind such party to the terms and conditions hereof; (iii) it is in compliance with the terms of this Agreement and any SOW and the documents referred to in it shall not breach any law, order, judgment, decree or other restriction applicable to such party. Konversational will re-perform any work not materially in compliance with this warranty brought to its attention within thirty (30) days after that work is performed.

The preceding are the only warranties concerning the Services, any Deliverables or materials, or this Agreement, and (to the extent permitted by law) are made expressly in lieu of all other warranties, conditions, terms, representations and/or undertakings, express or implied, statutory or otherwise, including (without limitation) as to condition, performance, fitness for purpose, satisfactory quality, informational content, systems integration, non-infringement or otherwise.

Indemnities

Subject to the provisions of clause 8.1, each party (the “Indemnifying Party”) will indemnify, save, and defend the other party, its parents, subsidiaries, affiliates, successors, and their directors, officers, employees, agents and representatives (collectively the “Indemnified Parties”), from and against any and all third party claims, costs, expenses, demands, damages, lawsuits, fines, penalties and liabilities (including, without limitation, interest, penalties, legal fees and court costs) to the extent caused by:
‍

1. where Konversational is the Indemnifying Party, a claim that any Deliverable provided by
   Konversational to the Customer pursuant to this Agreement (i) infringes a copyright or trademark held by that third party; (ii) infringes that third party’s patent existing as of the date of delivery of such Deliverable, or (iii) constitutes misappropriation or unlawful disclosure or use of that third-party’s trade secrets; or
2. where the Customer is the Indemnifying Party, a claim that any Customer IP provided to Konversational pursuant to this Agreement (i) infringes a copyright or trademark held by that third party; (ii) infringes that third party’s patent existing as of the date of delivery of such Deliverable or Konversational’s first use of the Customer IP, or (iii) constitutes misappropriation or unlawful disclosure or use of that third-party’s trade secrets (collectively, “Indemnified Claims”).
   The above indemnities are the sole and exclusive remedies for Indemnified Claims.

The Indemnifying Party will have no liability to any Indemnified Party under this clause 8 to the extent that the Indemnified Claim is based upon: (i) modifications to any item made by or on behalf of the Indemnified Party in a manner that causes the infringement; (ii) use of any item in combination with any hardware, software or other products or services in a manner that causes the infringement and where such combination was not within the reasonable contemplation of the Parties given the intended use of the item; (iii) the failure of an Indemnified Party to use corrections or enhancements to such item that are made available by the Indemnifying Party; (iv) specifications or direction provided by the Indemnified Party caused such Indemnified Claim; or (v) use not authorised under this Agreement.

If any Deliverable or Customer IP (as applicable) is, or in the Indemnifying Party’s opinion is likely to be, held to be infringing such that could result in an Indemnified Claim, the Indemnifying Party will at its expense and option either: (i) procure the right for the Indemnified Party to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing, or (iv) direct the return of the Deliverable or cease the use of the Customer IP (as applicable) (and in the case of a Deliverable refund to the Customer the fees paid for such Deliverable).

The Indemnified Party must promptly notify the Indemnifying Party in writing of any claim or demand made which falls under the provisions of this clause and provide the Indemnifying Party reasonable cooperation and full authority to defend or settle the claim or suit provided that such settlement does not impose any obligation (monetary or otherwise) on the Indemnified Party in any way without the written approval of the Indemnified Party, including without limitation, any determination or admission regarding any Indemnified Party’s interest. The Indemnified Party may participate at its own expense in the defence of any such claim, provided that such participation is not disruptive to the Indemnifying Party’s defence of the claim.

Liability

Except only for the Customer’s obligation of indemnification set forth above, the sole liability of either party to the other (whether in contract, tort (including negligence) or under statute for breach of statutory duty or otherwise) for any and all claims in any manner related to this Agreement will be payment of direct damages, not to exceed (in the aggregate) an amount equal to the total fees paid to Konversational under the applicable SOW during the previous twelve-month period.

In no event will either party be liable for any: (a) consequential, incidental, indirect, special or punitive damage, loss or expenses or (b) business interruption, lost business, lost profits or goodwill or reputation or lost savings (anticipated or otherwise) (in each case whether direct or indirect), or (c) loss or claim arising out of or in connection with the Customer’s implementation of any conclusions or recommendations made by Konversational based on, resulting from arising out of or otherwise related to this Agreement.

Nothing in this Agreement excludes or limits either party’s liability to the other which cannot lawfully be excluded or limited including, without limitation, liability for death or personal injury caused by negligence or fraud.

The foregoing shall be the Customer’s sole and exclusive remedy and Konversational’s sole and exclusive liability hereunder.

Notwithstanding the foregoing, and for the avoidance of doubt, each party agrees that it shall not seek additional coverage for a third-party claim where it has already obtained coverage for the same or substantially similar third-party claim or losses or damages related to such third-party claim, from the other party.

In the event that applicable laws do not allow the limitation of liability as set forth above, this limitation will be deemed modified solely to the extent necessary to comply with applicable laws. The foregoing limitations and exclusions will apply regardless of whether the cause of action arises in contract, or otherwise and notwithstanding the failure of the essential purpose of any remedy or negligence.

Compliance with Laws

Each party will retain responsibility for compliance with all laws and regulations applicable to their respective businesses. Each party shall retain responsibility for its compliance with all applicable export control laws and economic sanctions programs relating to its respective business, facilities, and provision of services to third parties.

Konversational shall not be required by the terms of the Agreement to be directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable export control or economic sanctions programs if performed by Konversational. Prior to providing Konversational any goods, software, or technical data subject to export controls, the Customer will provide written notice to Konversational specifying the nature of the controls and any relevant export control classification numbers

Term and Termination

This Agreement shall remain in force for a period of 3 years (the “Term”) from the date hereof unless terminated by either party in line with this clause 10. The Agreement, and any related SOW shall automatically renew for additional terms equal in duration to the Term if neither party serves written notice of termination no later than 90 days prior to the date of the expiration of the then current term.

In addition to any termination rights of the parties in an SOW, either party may, upon giving thirty (30) days written notice to the other party, identifying specifically the basis for such notice, terminate this Agreement and any active SOW, (i) for material breach of this Agreement unless the party receiving the notice cures such breach within the thirty (30) day period following receipt of such written notice; (ii) immediately if the party receiving the notice suffers an insolvency event; or (ii) if any change in any law or regulation renders it unlawful for Konversational to provide any Services or if the provision of any Services would subject Konversational to any legal action or threat of legal action. If either party (a) holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors; (b) has a receiver, administrator, or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within seven (7) days) upon the whole or substantially all of its assets; or (c) ceases or threatens to cease to carry on business or becomes unable to pay its debts; (d) something having a substantially similar effect to (a) or (c) occurs in connection with either party under the law of the applicable jurisdiction, then in any such event, the other party shall have the right to terminate this Agreement with immediate effect upon written notice.

In the event this Agreement is terminated upon expiry of the Term or otherwise in accordance with clause 10.2,the Customer will immediately pay Konversational for all Services rendered, interest (if applicable) and expenses incurred prior to the date of termination according to the monthly billing cycle set forth in the Agreement and, any out of pocket demobilisation costs if Konversational terminates this Agreement for cause pursuant to clause 11.2. All provisions of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement will survive such expiration or termination. Termination of the Agreement does not affect the remaining term of any SOW.

Disputes

The parties will make good faith efforts to first resolve internally any dispute in connection with this Agreement. The party raising any dispute shall first serve written notification to the other party. Within thirty (30) days of the service of such notice one director or other senior representative of each party with authority to settle the dispute shall meet to seek to resolve the dispute. If within thirty (30) days of service of the notice no meeting has taken place or the dispute has not been resolved, either party shall be entitled to refer the dispute to the courts in accordance with this clause.

In the event the Customer in good faith disputes any invoice or portion thereof, the Customer shall issue a notice (via email), setting out its objection to the disputed invoice within 10 business days of receipt of the disputed invoice. If such notice shall not be issued within 10 business days of the receipt of the disputed invoice, the invoice will be deemed accepted. Such notice shall contain the information set out as follows (a) date and number of disputed invoice; (b) the amount in dispute; (c) reason for dispute; and (d) supporting documentation as appropriate. The parties will work together to expeditiously resolve such dispute within 45 days from the date of invoice. In the event that the Customer withholds an amount equal or greater to 2 months’ fees under any SOW (in total), then Konversational will be permitted to suspend performance until such time as the matter in dispute is resolved.

This Agreement shall be governed by and construed in accordance with the laws of Ireland, without regard to its conflict of laws provisions and each party irrevocably submits to the jurisdiction of the courts of Ireland in respect of any disputes in connection with this Agreement.

Relationship

Each party is an independent contractor and does not have any authority to bind or commit the other. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between such parties for any purpose.

Neither party will solicit, offer work to, employ, or contract with, directly or indirectly, any of the other party’s Personnel during their participation in the Services or during the twelve months after the conclusion of such Services. “Personnel” means any individual or company a party employs or has employed as a partner, employee, or independent contractor and with which a party comes into direct contact in the course of the Services. However, this clause will not apply to Personnel who independently respond to indirect solicitations (such as general newspaper advertisements, employment agency referrals and internet postings) not targeting such Personnel.

If Konversational subcontracts any Services under this Agreement, it is understood that Konversational is responsible for its subcontractors’ performance. In this Agreement, “affiliate” of a party means another entity that, directly or indirectly, through one or more intermediaries, is controlled by or under common control of that party, and control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the party, whether through share ownership, holding of voting power, contract or otherwise.

Force Majeure

A “Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation: acts of terrorists, war declared or undeclared, blockade, revolution, riot, insurrection, civil commotion, invasion or armed conflict, sabotage or acts of vandalism, criminal damage or the threat of such acts, cyber-attack, natural disasters and phenomena including extreme weather or environmental conditions, fire, flood, earthquake, explosions including nuclear explosion, radioactive or chemical contamination, pandemics or epidemics, or other elements of nature or acts of God, and failures in either Party’s or a third party’s electrical power.

Save for payment obligations in respect of which a party may not claim Force Majeure, neither Party shall be liable to the other Party for any delay or non-performance of its obligations under this Service Agreement to the extent that its performance is interrupted or prevented by a Force Majeure Event.

The affected Party shall (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than seven calendar days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Service Agreement.

Without limiting the foregoing, to the extent the Customer fails to perform one or more responsibilities described in this Agreement, Konversational shall be excused from failure to perform any affected obligations under this Agreement. If there is any delay, then the periods for completion of the parties’ obligations will be automatically extended by the period of such delay.

If the Force Majeure Event prevails for a continuous period of more than 60 calendar days, either party may terminate the affected engagement by giving 10 calendar days’ written notice to the other party. On the expiry of this notice period, the affected engagement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the affected engagement occurring prior to such termination.

Scheduling Policy

Konversational requires at least 15 business days prior written notice to cancel or reschedule service dates that have been scheduled by the Customer. For scheduled service days that are cancelled or rescheduled by the Customer with less than 10 business days prior written notice, the Customer shall be charged and pay for (a) any reasonable travel expenses that cannot be cancelled or refunded, and (b) the cancelled/rescheduled Service days if Konversational is not able to reassign the personnel to another project.

If the Customer cancels the whole or part of the SOW, then it shall be liable to pay to Konversational for all service days worked by Konversational up to the day that the SOW was cancelled notwithstanding that a “milestone” or “Acceptance” may not have been achieved.

General

Entire Understanding and Severability. This Agreement sets forth the entire understanding between the parties with respect to its subject matter and save in respect of fraudulent misrepresentation supersedes all prior agreements, conditions, warranties, representations, arrangements, and communications, whether oral or written, and whether with or by Konversational, any of its affiliates, or any of their employees, officers, directors, agents, or shareholders.

Each party acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein, and that it has not relied upon any representations, warranties, promises, or inducements of any kind, whether oral or written, and from any source.

Each party acknowledges that it is a sophisticated business entity and that in entering into this Agreement it has had the opportunity to consult with counsel of its choosing.

If a court of competent jurisdiction finds any term of this Agreement to be invalid, illegal, or otherwise unenforceable, such term will not affect the other terms of this Agreement. Such term will be deemed modified to the extent necessary, in the court’s or panel’s opinion, to render such term enforceable while preserving to the fullest extent permissible, the intent and agreements of the parties set forth in this Agreement. Upon such modification, the rights and obligations of the parties will be construed and enforced in accordance with such modification.

Counterparties and Exhibits. This Agreement may be executed in multiple counterparts, each of which will be considered an original, and all of which when taken together will constitute one agreement binding on the parties, even if both parties are not signatories to the original or the same counterpart.In the event of a conflict between this Agreement and an SOW, the SOW controls for purposes of that SOW only. This Agreement may include one or more exhibits at the time of execution which shall be listed and considered part of the Agreement.

Changes. This Agreement (including the Services, Deliverables, timelines, and fees in a SOW) may not be modified or amended except by the mutual written agreement of the authorised representatives of the parties (“Change Order”). Notwithstanding any other provision of this clause, Konversational may from time to time and with reasonable notice (not requiring consent), (i) change the features and functionality of any Service the subject of a SOW as part of its ongoing development of the Services it provides for any reason including without limitation to (a) improve the engagement; or (b) comply with any applicable statutory requirements or the application of any new laws, regulations.

Purchase orders: Any purchase order issued by the Customer will be for its administrative purposes only and none of its terms and conditions will be of any force or effect against Konversational.

Third Party Rights. Nothing in this Agreement is intended or will be construed to confer on any party (other than the Customer, Konversational, and the parties entitled to indemnification) any rights, benefits or remedies of any kind, and no other party will be deemed to be a third-party beneficiary.

Excluded Convention. To the extent it may be applicable, the parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement.

Assignment

Neither party may assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that, upon notice to the other party, the rights, and obligations of either party may be assigned without consent to a party’s affiliate or subsidiary; provided that the assignor remains responsible for the obligations of the assignee.

In this Agreement, “affiliate” of a party shall mean another entity that, directly or indirectly, through one or more intermediaries, is controlled by or under common control of that party, and control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the party, whether through ownership of shares, the holding of voting power, by contract or otherwise.

Notices

Any notice or other communication provided under this Agreement will be in writing and will be effective either when delivered personally to the other party, or 5 days following deposit into the postal mail service (certified mail, return receipt requested), or upon overnight delivery service (with confirmation of delivery), addressed to such party at the address set forth herein. A copy of such notice will also be delivered to the Customer’s Legal Department.

References

Neither party will use the other party’s name outside its organization without prior express written consent of the other party, which consent may be withheld in its sole discretion.

Notwithstanding the foregoing, Konversational shall be permitted to refer to the Customer as a customer reference concerning the general area of work under this Agreement, for opportunities at existing and prospective Konversational Customers. Konversational may request and the Customer will provide reasonable written or verbal verification of the engagement and general nature of the Services to such Konversational Customers (such verification not to be unreasonably withheld). The Customer’s Confidential Information and the pricing that the Customer paid for the Konversational Services shall not be disclosed in such referrals without the permission of the Customer.

Waiver

No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party against which it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under this Agreement is not a waiver of that party’s right to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.