12.1 Insurance. Rhythm maintains and will maintain the following insurance policies during the Term with one or more insurance carriers having at least a minimum A.M. Best’s rating of A-/VII: (a) Workers’ Compensation and Employers’ Liability. Statutory limits (workers’ compensation) and not less than $1,000,000 per claim (employers’ liability); (b) Commercial General Liability of not less than $5,000,000 combined single limit for property damage and bodily injury per occurrence, including Contractual Liability, Broad Form Property Damage, Bodily Injury, Personal and Advertising Injury, and Products and Completed Operations Liability coverages, provided that such limits may be satisfied with any combination of primary and umbrella insurance; and (c) Network Security/Privacy Liability/Cyber Coverage in an amount not less than $1,000,000 per occurrence or per claim, providing coverage for unauthorized access to or use of a computer network and unauthorized access to or dissemination of personally identifiable information. Rhythm may satisfy two or more of the policy requirements in this section with the same insurance policy.
12.2 Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. Exclusive venue for any action arising out of or in connection with this agreement shall be in Florida. The parties each hereby consent to the jurisdiction and venue in Broward County, Florida, and waive any objections to such jurisdiction and venue.
12.3 Delay in Performance. If Rhythm’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Rhythm shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay, and Rhythm’s obligation to perform will be extended by the same number of days as Customer’s contingent action is delayed.
12.4 Conflicting Terms in Customer Purchase Orders. Notwithstanding the content of any Customer purchase order or any other document or record generated by Customer (other than an executed Order), whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement will govern and any conflicting, inconsistent, or additional terms contained in such documents will be null and void.
12.5 Notice. All communications required or otherwise provided under this Agreement will be in writing and will be deemed given when delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight courier service; to the address set forth for the applicable party on the first page of this Agreement, as may be amended by the party by written notice to the other party in accordance with this Section 12.5.
12.6 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign this Agreement, in whole, to a successor of all or substantially all of the assets of that party through merger, reorganization, consolidation or acquisition. If a party makes any attempted assignment, transfer, or other conveyance in violation of the foregoing, the attempted assignment, transfer, or other conveyance will be null and void.
12.7 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.
12.8 Severability. In case any one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.
12.9 Entire Agreement. This Agreement, including the schedules and exhibits hereto and Orders entered hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
12.10 Publicity. Customer shall permit Rhythm to feature Customer in a press release upon execution of this Agreement and shall permit Rhythm to feature Customer in marketing materials following the implementation of the Software Services. Rhythm and Customer agree to collaborate on public announcements and marketing materials and shall refrain from issuance or distribution of marketing materials without first obtaining the prior written consent of the other party, which shall not be unreasonably withheld.
12.11 Amendment; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
12.12 Export. Customer shall not itself, or permit any third party, to, export, re-export or release, directly or indirectly, the Software Services to any country, jurisdiction or individual person to which the export, re-export or release of the Software Service (a) is prohibited by applicable law and associated regulations or (b) without first completing all required undertakings, including obtaining any necessary export license or other governmental approval. Customer will indemnify and hold Rhythm harmless from any breach of this section.
12.13 Force Majeure. Neither party will be liable for delay or failure in performing any of its obligations (other than payment obligations) hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, actions or orders, epidemics or pandemics, terrorism, denial of service, ransomware or other cyberattacks, communication or utility failures or casualties or the failures or acts of third parties.
12.14 Equitable Relief. Each party acknowledges that a breach by a party of Section 3.2 (Usage Restrictions) or Section 6 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
12.15 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and, except as expressly set forth in Section 7.3 and 10, nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
12.16 Relationship of Parties. Nothing in this Agreement will constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party will have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
12.17 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.