RudderStack Master Services Agreement

Last Updated: March 7, 2021

This Services Agreement (the “Agreement”) is entered into as of the Agreement Date by and between RudderStack, Inc., a Delaware corporation (“RudderStack”), and the Customer. Such parties are hereinafter referred to collectively as the “Parties” or individually as a “Party”. RudderStack and Customer agree as follows:

1. Services

1.1 Services. RudderStack operates an open-source customer data platform as well as several paid subscription plans with additional support and product features (“RudderStack” or the “Services”). The Services are purchased as subscriptions, the specifics of which are described in one or more order forms (the “Order Form”) that may be entered into by the Parties from time to time.

1.2 Order Forms. Each Order Form sets forth the Services and related deliverables RudderStack is providing to the Customer as well as the subscription fees (the “Fees”). Each Order Form shall be governed by the terms and conditions of this Agreement. If there are any terms and conditions in any Order Form that conflict with the terms of this Agreement, then the terms of the Order Form shall take precedence over any inconsistent terms in this Agreement.

2. Payment

2.1 Fees. All Fees set forth in the Order Form are payable by Customer in United States Dollars unless otherwise specified in the applicable Order Form. Fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) the subscription services purchased cannot be decreased during the relevant subscription term.

2.2 Invoicing and Payment.

Debit Card, Check or Wire Transfer. All payments due under this Agreement shall be made by check or bank wire transfer. Such charges shall be paid in advance in accordance with the frequency stated in the applicable Order Form.
Invoices. RudderStack will invoice Customer in advance in accordance with the relevant Order Form. Payments for invoices are due within 30 days of the date of invoice unless otherwise specified on the Order Form, and are considered delinquent after such date. Notwithstanding the foregoing, in no case shall any Fees be due, or shall Customer be charged, prior to the due date set out in the applicable Order Form.
Billing Information. Customer has provided on the Order Form complete and accurate billing and contact information (including all actions necessary to obtain payment from Customer, such as purchase order requirements if applicable) to RudderStack.

2.3 Overdue Charges. If any undisputed invoiced amount is not received by RudderStack by the applicable due date, then without limiting RudderStack’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding undisputed balance per month, or the maximum rate permitted by law, whichever is lower.

2.4 Suspension of Service and Acceleration. In the event of delinquent payments under this Agreement or any other agreement, without limiting RudderStack’s other rights and remedies, RudderStack may accelerate Customer’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend or terminate the Services to Customer until such amounts are paid in full.

2.5 Taxes. 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 jurisdiction whatsoever (“Taxes”). Customer is responsible for any Taxes, and Customer will pay RudderStack for the Services without any reduction for Taxes. If RudderStack is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer.

3. Term and Termination

3.1 Term of Agreement. This Agreement commences on the Agreement Date and continues until all subscriptions under all Order Forms have been terminated, including by expiry.

3.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. If no term is specified in the Order Form, the subscription term shall be a period of 12 months beginning on the date immediately following the termination of the evaluation period, if any. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to one year unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.

3.3 Termination. Either Party may terminate this Agreement if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within thirty (30) days; or (iii) the other Party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches. In the event of any termination, Customer will remain liable for any undisputed amounts due under this Agreement.

3.4 Survival. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, confidentiality, warranty disclaimers, indemnity, and limitations of liability.

4. RudderStack Responsibilities

4.1 Provision of Services. RudderStack will use commercially reasonable efforts to make the Services available to Customer, and all related deliverables to Customer, pursuant to this Agreement and all applicable Order Forms.

4.2 Protection of Customer-Provided Data. RudderStack will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer-Provided Data. Safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer-Provided Data by RudderStack employees and third party service providers except (i) to provide the Services and prevent or address service or technical problems, (ii) for billing, account management and other administrative matters, (iii) as compelled by law in accordance with Section 7.3 of this Agreement, or (iv) as Customer expressly permits in writing. All facilities used to store and process Customer Data will adhere to commercially reasonable security standards no less protective than the security standards at facilities where RudderStack stores and processes its own information of a similar type, and in any case no less than reasonable standards given the sensitivity of the Customer-Provided Data.

RudderStack may only disclose or transfer for processing Customer-Provided Data to third parties (including affiliates agents and subprocessors of RudderStack) who are commercially recognized providers of such processing services; for the avoidance of doubt, RudderStack shall not sell such Customer-Provided Data.

RudderStack’s list of current subprocessors are:

Amazon Web Services - USA - Cloud Service Provider
MailChimp - USA- Email Services
Google Analytics - USA - Web Analytics Service
Google Apps - USA - Cloud Service Provider
Slack - USA - Customer Support
Quickbooks - USA - Payment Services
Autopilot - USA - Email Services
Salesforce - USA - CRM

4.3 Personnel. RudderStack will be responsible for the performance of its employees and third party services providers and their compliance with RudderStack’s obligations under this Agreement, unless otherwise specified herein, and will use commercially reasonable efforts to prevent unauthorized access to or use of the Customer-Provided Data, and promptly notify Customer of any such unauthorized access or use.

5. Maintenance and Support

5.1 Updates and Patches.

Customer acknowledge that RudderStack may from time to time issue updates, bug fixes, or patches (“Updates”) to the Services, and may automatically electronically issue these Updates. Access to these Updates shall be provided to Customer provided that there is not a suspension of services under Section 2.4. Customer hereby consent to any automatically issued Updates. Notwithstanding anything to the contrary, Customer agrees to implement any manual Updates within a commercially reasonable period of time.

5.2 Support. RudderStack shall provide assistance and technical support (“Support”) to Customer depending on the subscription plan.

Professional Plan:Chat Support

RudderStack shall use commercially reasonable efforts to respond to any Support messages and questions within 8 Business Hours.Enterprise Plan:Chat Support
Customer Success Manager
Slack Channel

RudderStack shall use commercially reasonable efforts to respond to any Support messages and questions within 4 Business Hours.

Support will be available from 8am to 6pm and 10pm to 5am US Standard Time, Monday through Friday, excluding holidays (“Business Hours”). Enterprise Plan customers should refer to the Order Form for your Customer Success Manager and Dedicated Slack Channel.

5.3 Target Availability Levels. RudderStack shall use commercially reasonable efforts to provide the Services to subscriptions made under the Professional Plan. The commercial support levels below are in effect only for subscriptions made under the Enterprise Plan in accordance with the terms of this Agreement and in accordance with the terms of any applicable Order Forms:

RudderStack has two modes of operation:

Normal Mode: In this mode, RudderStack is fully operational, receiving events and sending data to destinations.
Restricted Mode: In this mode, RudderStack is partially operational where it is receiving events but has disabled the sending of data to destinations. This typically happens when we are deploying a fix or upgrading the Services.

RudderStack is considered “unavailable” when it is not in normal or restricted mode.

RudderStack will use commercially reasonable efforts to make the Services available twenty-four hours a day, seven days a week with a monthly uptime percentage of at least 99.9% during each calendar month commencing with the first full calendar month following the integration of the Services by Customer (the “Service Commitment”). The Service Commitment will be calculated as follows: the number of minutes the Services are accessible and not suffering from a downtime as reported to Company by Customer during each calendar month, divided by the total number of minutes in the calendar month. A monthly uptime percentage of 99.9% means that we will use commercially reasonable efforts to ensure that you will experience no more than 43 minutes and 49.7 seconds of downtime per month, excluding holidays and any scheduled maintenance. However, any downtime resulting from outages of third party connections or utilities or other reasons beyond RudderStack’s control will be excluded from any such calculation.

Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with the availability levels shall be that for each period of downtime lasting longer than 43 minutes and 49.7 seconds, Customer shall be eligible for the Service Credits described in Section 5.3. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash. We will apply any Service Credits only against future payments for the Services otherwise due from you, and the Service Credits will not entitle you to any refund or other payment from RudderStack. Company’s blocking of data communications or other Services in accordance with its policies shall not be deemed to be a failure of Company to provide adequate availability levels under this Agreement.

5.4 Service Credits. The Service Credits below are only made available to subscriptions made under the Enterprise Plan in accordance with the terms of this Agreement and in accordance with the terms of any applicable Order Forms. Any Service Credits granted to subscriptions under the Professional Plan shall be at the sole discretion of RudderStack.

Service Credits are calculated as a percentage of the monthly invoice amount (or yearly amount divided by 12 for a yearly contract) in which the unavailability occurred.

For Monthly Uptime Percentage less than 99.5% but equal to or greater than 99.0% , you will be eligible for a Service Credit of 10% of the monthly invoice amount.
For Monthly Uptime Percentage less than 99.0%, you will be eligible for a Service Credit of 25% of the monthly invoice amount.

6. Customer Responsibilities

6.1 Usage Restrictions. Customer shall not, and shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Services, in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of RudderStack or its suppliers contained on or within any copies of the Services; (e) use the Services for the purpose of creating a product or service competitive with the Services; (f) use the Services with any unsupported software or hardware (as described in the applicable documentation provided by RudderStack); (h) publicly disseminate performance information regarding the Services; or (i) use the Services other than as described in the documentation provided by RudderStack, or for any unlawful purpose. RudderStack reserves the right to investigate potential violations of this Agreement and the right to suspend any accounts suspected of the violation from accessing the Services as is reasonably necessary to address the potential violation.

6.2 Compliance. Customer will (i) be responsible for the compliance of any End Users Customer permits to use the Services with the terms of this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer-Provided Data, the means by which Customer acquires Customer-Provided Data and Customer’s use and continued use of Customer-Provided Data through the Services, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services by End Users, and promptly notify RudderStack of any such unauthorized access or use, and (iv) ensure that Customer hardware or equipment meets the minimum requirements necessary to support the installation, maintenance, use, and removal of the Services.

7. Intellectual Property

7.1 Customer-Provided Data. All rights, title and interest in and to any data or information or content provided, generated, transmitted, displayed or otherwise made available to RudderStack via or in connection with the Services by Customer or its End Users (“Customer Data”) shall remain the sole property of Customer and/or its End Users as applicable.

7.2 Customer Logos and Designs. Customer shall retain all right, title and interest in and to all of Customer’s logos, promotional graphics and related marketing designs (collectively, the “Customer Art”); provided, however, that Customer hereby grants to RudderStack a worldwide, royalty-free, non-exclusive license to use the Customer Art, as well as Customer’s corporate and/or trade name, for purposes of fulfilling its obligations hereunder and, solely as set forth on the Order Form, for the marketing of RudderStack’s products and services.

7.3 RudderStack Rights. Except for the limited rights expressly granted to Customer hereunder, RudderStack owns and retains all rights, title and interest in and to the Services and any related documentation as further described in the Order Form hereto, including but not limited to all copyrights, trademarks, domains, logos, trade dress, trade secrets, patents, and other intellectual property rights associated with the Services. Customer may not use RudderStack’s copyrights, trademarks, domains, logos, trade dress, patents, and other intellectual property rights unless Customer has RudderStack’s express written permission.

7.4 Customer License to RudderStack. RudderStack shall not access, use, modify, copy, store, disclose, view, adapt, transmit, publish or otherwise process any Customer-Provided Data, or permit any other person to do the same, except as expressly permitted under this Agreement. Customer hereby grants to RudderStack a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to access, use, modify, copy, store, process, view, adapt, publish, transmit and display Customer-Provided Data only for the limited purposes of (i) providing the Services and associated customer support to Customer; (ii) analyzing and improving the Services. No licenses or rights are granted to RudderStack by implication or otherwise, except for the licenses and rights expressly granted to herein.

7.5 Usage Data. Usage Data means learnings, logs, feedback, and data regarding use of the Service. Customer agrees that Usage Data will be solely owned by RudderStack and RudderStack will have the right to generate Usage Data which RudderStack may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve RudderStack’s products and services and to create and distribute reports and other materials), provided that Usage Data will be in an aggregated or otherwise de-identified form and will not identify Customer or its End Users.

7.6 Usage Rights of the Customer. RudderStack grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicenseable right during the applicable subscription term to access and use the Services for Customer’s internal business purposes in accordance with this Agreement. Customer may permit its employees, agents, or contractors (“End Users”) to access and use the Services through its account, provided that such End Users are using the Services on behalf of Customer in accordance with this Agreement. No licenses or rights are granted to Customer by implication or otherwise, except for the licenses and rights expressly granted to herein.

7.7 Software. If Customer receives a license to downloadable software in connection with the Services (the “Software”), RudderStack hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the applicable subscription term to install and use the Software for Customer’s internal business purposes in accordance with all applicable documentation and in accordance with this Agreement, in connection with the deployment of no more than one instance of that software.

8. Confidentiality

8.1 Confidential Information. The Parties acknowledge that, in the course of performance under this Agreement, a Party (the “Disclosing Party”) may disclose, deliver or permit access by the other Party (the “Receiving Party”) to information that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential given the nature and the circumstances surrounding disclosure (“Confidential Information”). Confidential Information shall include, but shall not be limited to: proprietary technical information, know-how, inventions, techniques, applications, analyses, methods, methodology, algorithms, source codes, training models, software (including, but not limited to, the Services and its Updates) and documentations (including, but not limited to, documentations of the Services and its Updates) ; business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, trade secrets, methods and models; and employee, customer and supplier information. With respect to the Customer, Confidential Information also includes all Customer-Provided Data.

8.2 Non-Disclosure and Non-Use. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the Disclosing Party, or as required by law, the Receiving Party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the Disclosing Party. Each party agrees that Receiving party will: (i) use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement and under any applicable Order Forms (ii) restrict access to the Disclosing Party’s Confidential Information to such of its employees, personnel, agents, and/or consultants, if any, who have a need to have access to the Confidential Information and who have been advised to treat such information in accordance with the terms of this Agreement (iii) use the same care and discretion with respect to the Confidential Information received from the Disclosing Party as it uses with its own similar information, but in no event less than a reasonable degree of care.

8.3 Confidentiality Exclusions. The obligations set forth above shall not apply to any Confidential Information that the Receiving Party can demonstrate: (i) the Receiving Party possessed, without any obligation of confidentiality, prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of the Agreement by the Receiving Party; (iii) is or was independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (iv) is or was received by the Receiving Party from a third party that does not have an obligation of confidentiality to the Disclosing Party or its affiliates. Either Party may disclose the Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The Receiving Party may disclose Confidential Information of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding only to the extent necessary to comply with the order or other legal requirement. In such event the Receiving Party will, if lawfully permitted to do so, promptly notify the Disclosing Party within a reasonable time prior to disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures.

9. Representations, Warranties and Disclaimers

EXCEPT FOR THOSE EXPRESS WARRANTIES SET OUT IN THIS AGREEMENT, CUSTOMER AGREES THAT THE USE OF THE SERVICES IS ENTIRELY AT ITS OWN RISK; THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND (A) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW; (B) TO THE FULLEST EXTENT PERMITTED BY LAW, RUDDERSTACK DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES, OR ACCESSED THROUGH ANY LINKS ON THE SERVICES; (C) RUDDERSTACK DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED; (D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM RUDDERSTACK OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. AND, (E) RUDDERSTACK DISCLAIMS ANY WARRANTY THAT IT WILL REVIEW CUSTOMER-PROVIDED DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER-PROVIDED DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER-PROVIDED DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND RUDDERSTACK TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER-PROVIDED DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH DESTINATIONS AS REQUIRED BY APPLICABLE LAWS. RUDDERSTACK SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF RUDDERSTACK. RUDDERSTACK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES.

10. Limitation of Liability

NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOSE OF USE, LOSE OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (EXCEPT IN RESPECT OF CUSTOMER’S OBLIGATION TO PAY THE FEES SET FORTH HEREIN OR IN ANY ORDER FORM). EITHER PARTY’S AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES (INCLUDING THE INDEMNIFICATION CLAIMS SPECIFIED IN SECTION 10) WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE TO RUDDERSTACK IN THE PAST TWELVE MONTHS. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

11. Indemnification

Customer agrees to indemnify, defend and hold RudderStack harmless for all third party claims, damages, and expenses that arise out of or in connection with Customer’s breach of this Agreement, including any claims that Customer’s use of the Services in violation of this Agreement, violates third party rights or applicable law, or if caused by Customer’s gross negligence or willful misconduct.

RudderStack agrees to indemnify, defend and hold Customer harmless for all third party claims, damages, and expenses that arise out of or in connection with RudderStack’s breach of this Agreement, including any claims that Customer’s use of the Services as permitted by this Agreement, violates third party rights or applicable law, or if caused by RudderStack’s gross negligence or willful misconduct.

12. Miscellaneous

12.1 Entire Agreement. This Agreement (together with any Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof.

12.2 Notices. Unless specified otherwise herein, all notices must be in writing and addressed to the attention of the other Party’s primary point of contact and will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.

12.3 Assignment. Neither Party may assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void without consent of the other party; consent shall be reasonably granted in the context of an acquisition.

12.4 Force Majeure. Neither party will be liable for inadequate performance or breach to the extent caused by a condition (including, but not limited to, a natural disaster, act of war or terrorism, riot, labor condition, governmental action, epidemic, pandemic and Internet disturbance) (each a “Force Majeure Event”) that was beyond the party’s reasonable control. The party risking liability will utilize commercially reasonable efforts to remove or abate the effects of a Force Majeure event as soon as practicable, but if not removed or abated within fifteen (15) days, the other party may terminate this Agreement and any related Order Form without penalty by written notice. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.

12.5 No Waiver. No delay or failure to act regarding any breach of this Agreement shall constitute a waiver of such breach or of any prior, concurrent or subsequent breach of the same or other provisions of this Agreement. No single or partial exercise of any right shall preclude any other or further exercise of such right or the exercise of any other right. Except as otherwise expressly provided herein, the observance of any provision of this Agreement may be waived (either retroactively or prospectively) only with the signed written consent of the party against whom such waiver will be enforced. Such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it has been given and shall not be deemed or constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Failure to enforce any provision of this Agreement will not constitute a waiver.

12.6 No Agency. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture for any purpose.

12.7 Severability. If one or more of the provisions in this Agreement are deemed void or unenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected.

12.8 Governing Law. The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of California, without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement shall be in the courts located in San Francisco, California and both parties hereby consent to such jurisdiction and venue for this purpose.

12.9 Electronic Transmission. Delivery of an executed copy of this Agreement or Order Form, by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document has the same effect as delivery of an executed original of this Agreement or Order Form.