Service Terms and Conditions – APAC

These Service Terms and Conditions (these “Terms”) apply to and shall be incorporated by reference into each Service Schedule made by and between Lyris Technologies Inc. (hereinafter, “Lyris”) and the customer named in such Service Schedule (hereinafter, “Customer”). All references in these Terms to “Service Schedule” shall be deemed to include the Service Schedule, the Lyris Standard Terms of Use, and these Terms. All capitalized terms in these Terms shall have the meaning given in the Service Schedule unless otherwise indicated.

Lyris and Customer hereby agree as follows:

  1. 1.Services
    1. 1.1Scope. Lyris will provide Customer access to its hosted product(s) and/or other services on a subscription basis as described in the applicable Service Schedule (each, as may be modified, upgraded, or enhanced from time to time, a “Service”, and collectively the “Services”). Customer may use the Services only as provided in the applicable Service Schedule. Customer is solely responsible for the content of any website, email messages, or other materials produced, provided to Lyris, and/or used by Customer in conjunction with the Services (“Content”).
    2. 1.2Third-Party Services. Customer may elect, in its sole discretion, to obtain other services from one or more third parties for use in conjunction with the Services. Customer acknowledges and agrees that Lyris shall have no responsibility for such third-party services or their delivery.
    3. 1.3Services. The Services may include various professional services, to which the following additional terms will apply: (i) Lyris shall use commercially reasonable efforts to complete the Services in accordance with the Service Schedule; (ii) Customer acknowledges that Lyris’s provision of such Services is dependent in part on Customer’s cooperation with Lyris as well as Customer’s provision of materials and data necessary for Lyris to complete the Services. Accordingly, dates or time periods relevant to Lyris’s performance shall be appropriately adjusted to account for any delays due to Customer’s (or Customer’s agent’s) act or omission; (iii) if the Service Schedule requires Customer’s acceptance of any deliverable (each a “Deliverable”) or Services, then the Deliverable or Services shall be deemed accepted within ten (10) business days after delivery unless Customer provides Lyris with a written notice of rejection within such ten (10) day period.
    4. 1.4Training. Consultative Services involving Lyris personnel, such as configuration and one-on-one training, must be completed within sixty (60) days after the Effective Date of the applicable Service Schedule, whether delivered on-site or remotely. Unless otherwise agreed to in the applicable Service Schedule, all training sessions shall have a maximum of six (6) attendees. Any additional Services will be as set forth in a separate Service Schedule.
    5. 1.5Use of Subcontractors. Lyris generally performs Services itself and/or through one or more of its affiliates, but may use one or more subcontractors at its sole discretion. Lyris will inform Customer of its election to use a subcontractor, and will remain primarily liable for the performance of the Services in accordance with the terms of the applicable Service Schedule.
  2. 2.Billing and Payment.
    1. 2.1Quote. Any written cost estimate or proposed Service Schedule provided to Customer prior to execution of the Service Schedule (a “Quote”) reflects Lyris’ then-current understanding of project requirements based on information disclosed by Customer. If Lyris determines that time or materials in excess of those stated in the Service Schedule are required, such excess time or materials must be authorized by Customer in writing prior to Lyris’ performance or use. Otherwise, Lyris may re-allocate its resources between various items within the Service Schedule in order to meet budgetary restrictions within the Service Schedule.
    2. 2.2Billing. Customer will be invoiced for the fees for the Services (the “Fees”) in accordance with the prices set forth in the applicable Service Schedule. Unless otherwise set forth in a Service Schedule, all One-time Fees shall be invoiced in full on or after the Effective Date and recurring Fees shall be invoiced commencing as of the earlier to occur of: (a) the Service Schedule Start Date or (b) the date that Customer actually starts to use the Services. Minimum Monthly Fees will be invoiced commencing on such Service Schedule Start Date, regardless of whether Customer uses the Services as of that date.
    3. 2.3Payment. All invoices (or portion thereof) not subject to a good faith dispute are due upon receipt, and shall be paid via credit card or check as specified in the applicable Service Schedule. To the extent that Customer has a good faith dispute regarding any invoice, Customer shall within ninety (90) days after the invoice date provide Lyris with written notice of such dispute as well as reasonable supporting documentation (a “Notice of Dispute”). The parties shall thereafter promptly work together to resolve such dispute. If Customer does not provide a Notice of Dispute within said ninety (90) day period, then Customer’s right to dispute such invoice shall be deemed waived. Lyris reserves the right to accrue interest on undisputed amounts not received within thirty (30) days after the invoice date, at a rate the lesser of: (i) one and one-half percent (1.5%) per month, or (ii) the maximum rate permitted under applicable law, from the date due until paid in full. If Lyris has not received any payment (and/or Notice of Dispute) within said thirty (30) day period, then Lyris may also suspend Customer's access to the applicable Service(s) and/or hosted data upon no less than five (5) days prior, written notice to Customer until payment is made. Any suspension of Services pursuant to this Section 2.2 will not relieve Customer of its obligation to pay all amounts due.
    4. 2.4Fees. The Fees in the applicable Service Schedule are fixed for the Initial Term (duration to be defined in the Service Schedule). The Fees for any Renewal Term (duration to be defined in the Service Schedule) may be subject to an inflationary adjustment defined at the time of renewal, not to exceed three percent (3%) of each line item, per year.
    5. 2.5Taxes. The Fees set forth in each Service Schedule are exclusive of any applicable sales, use, excise and similar taxes. Lyris will bill, and Customer will pay, the amount of any such taxes assessed on the performance of any Services, excluding any tax related to the income of Lyris. If Customer is tax exempt, then Customer will provide Lyris with a copy of its tax exemption certificate on or before execution of the applicable Service Schedule. Customer agrees to reimburse Lyris for any tax, as well as any interest and penalties thereon, levied against Lyris for the provision of Services to Customer pursuant to a Service Schedule.
  3. 3.Proprietary Rights.
    1. 3.1Customer Materials & Content. Customer shall retain all right, title and interest in and to any software, hardware, data, tools, techniques, or other materials that Customer provides to Lyris in connection with the Services (“Customer Materials”). Customer represents and warrants, and will require each of its Agency Clients (if any, as that term is defined in Section 3.4 below) to represent and warrant that: (i) it will not use the Services in any manner which violates any third party’s rights; and (ii) by transmitting or allowing the transmission of any Content via the Services (if applicable), it grants Lyris the royalty-free, irrevocable, nonexclusive worldwide license to transmit and display such Content in whole or in part via the Services for the duration of the Services.
    2. 3.2Lyris Materials & Services. Lyris shall retain all right, title and interest in and to any software, hardware, data, tools, techniques, or other materials that it uses or develops in connection with its provision of the Services and Deliverables, subject to Customer’s rights to the Customer Materials and Customer’s Confidential Information (the “Lyris Materials”). The Services, and all of their elements, shall remain the property of Lyris (or its assignee), or where applicable, Lyris’s supplier. Customer shall have no right, title or interest therein except as specified above. All repairs, modifications, upgrades, and enhancements, including without limitation any Customer suggestions for new features or functionality of the Services, are the property of Lyris. The Services are provided subject to Customer’s compliance with Lyris’s Standard Terms of Use (as may be modified from time to time), which are set forth at http://www.lyris.com/company/standard-terms-of-use and incorporated into each Service Schedule.
    3. 3.3Limited License to Use Services. Lyris grants Customer the non-exclusive, non-transferable limited license to use Services on the terms and conditions set forth in the applicable Service Schedule only. Said license shall permit Customer to use the Services in machine readable and executable form with respect to the number instances and/or volume indicated in the applicable Service Schedule only. Lyris further grants to Customer a nonexclusive, nontransferable license to use any Deliverable for Customer’s own, internal business use only. To the extent any Lyris Materials are incorporated into a Deliverable, Lyris hereby grants to Customer a nonexclusive, nontransferable license to use such Lyris Materials with the Deliverable for Customer’s own, internal business use only. Lyris reserves all rights in and to the Lyris Materials that are not expressly granted to Customer pursuant to the applicable Service Schedule. The parties further agree that nothing in any Service Schedule shall prevent Lyris from using the expertise, ideas, and know-how learned while performing the Services for any purpose, including providing similar services to third parties, provided that Lyris does not violate its obligation of confidentiality described in Section 10 below.
    4. 3.4License Restrictions. Customer agrees not to do or suffer any third party to do the following, except as expressly permitted by the applicable Service Schedule: (i) copy all or any portion of the Services other than for the sole purpose of back-up; (ii) decompile, reverse engineer, or disassemble all or any portion of the Services; (iii) derive or attempt to derive the Services’ source code by any means; (iv) transfer the Services to any system except as actually necessary for its intended authorized use and as instructed by Lyris; (v) sell, rent, lease, distribute or otherwise transfer the Services to any third party; or (vi) remove from Services, or alter, any of the trademarks, trade names, logos, patent or copyright notices or other proprietary rights notices or markings of the Services. Unless the applicable Service Schedule permits Customer to use the Services as an Agency, Customer shall use the Services solely for Customer’s own use and not for resale, sublicense and/or distribution outside of Customer’s internal business. If the applicable Service Schedule permits Customer to provide the Services as an Agency, then Customer may use the Services as provided herein for the benefit of Customer’s clients (each, an “Agency Client”); provided that Lyris has approved Customer’s use of the Services for the benefit of each such Agency Client. If Lyris has not approved Customer’s use of the Services for the benefit of any Agency Client, then Lyris may immediately suspend Customer’s use of the Services on behalf of such Agency Client. Where Lyris has approved of Customer’s use of the Services on behalf of an Agency Client, Customer shall ensure that such provision of Services is subject to the rights of Lyris as provided in the applicable Service Schedule and Customer shall be fully responsible for any breach of the provisions of the Service Schedule that may be caused by such Agency Client. In no event will Customer’s agreement with any of its Agency Clients either: (i) purport to create any obligation or liability on the party of Lyris to any such Agency Client or any third party; or (ii) increase or purport to increase Lyris’s obligations to Customer or an Agency Client in excess of those contained in the applicable Service Schedule. All of Customer’s agreements with its Agency Clients relating to the Services shall expressly disclaim any representations and warranties by Lyris to such Agency Client and all liability of Lyris to such Agency Client. In such case, Customer shall remain primarily liable for the performance of Customer’s and each Agency Client’s obligations under the applicable Service Schedule.
    5. 3.5Limited License to Data. As between Lyris and Customer, Customer shall own all right, title, and interest in and to any data that Lyris collects and stores on behalf of Customer in providing the Services (the “Data”). The Data shall be deemed Customer’s Confidential Information (defined below). Customer grants Lyris a nonexclusive, nontransferable license to: (a) capture and maintain the Data in connection with Lyris’s provision of Services to Customer and enforcement of its rights as described in the applicable Service Schedule; and (b) compile aggregated statistics including the Data along with data of other Lyris customers for internal or marketing use (provided that no such use shall include any information that can identify Customer or any of its end users or Agency Clients). Notwithstanding the foregoing, Customer acknowledges that Lyris may access Customer’s hosted membership list(s) in order to unsubscribe a member who has sent to Lyris a request that it do so or a complaint to the effect that such member is unable or unwilling to unsubscribe themselves, or if the presence of such member’s email address on the list violates the terms of the applicable Service Schedule.
    6. 3.6Marks and Publicity. Lyris and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), shall be the sole and exclusive property of the respective owning party, which shall own all right, title and interest therein. Subject to the other party’s prior approval (which approval shall not be unreasonably withheld or delayed), each party may further: (i) use the other party’s name and/or logo within product literature, press release(s), social media, and other marketing materials; quote the other party’s statements in one or more press releases; and/or (iii) make such other use of the other party’s name and/or logo as may be agreed between the parties. Additionally, Lyris may include Customer’s name and/or logo within its list of customers for general promotional purposes. Each party shall comply with the other party’s trademark use guidelines as such are communicated to the using party in writing and each shall use the other party’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section 3.6.
  4. 4.Obligations.
    1. 4.1Customer Obligations. Customer agrees to abide by all laws, rules, and regulations that are applicable to its use of the Services. Customer shall ensure that each Web site for which the Service is engaged contains or is linked to a privacy policy that governs its data collection and use practices. Customer has and will maintain all rights as shall be required to allow Lyris to provide the Services to Customer as set forth in the applicable Service Schedule, including without limitation from advertisers, and to permit Lyris to collect and store the Data pursuant to the applicable Service Schedule. Customer is responsible for the Customer Content. Where Lyris provides managed Services, Customer is responsible for cooperating with Lyris to promptly provide necessary approvals or other feedback to enable Lyris to perform such managed Services. Customer hereby represents and warrants that Customer’s use of Customer Materials in connection with the Services will not violate any agreement it has with a third party or any applicable laws. If applicable law requires end users to be expressly informed and consent to the use, disclosure, and/or transfer of their personal information (including but not limited to possible use, disclosure, or transfer overseas), Customer agrees and represents that, prior to the inclusion of personal information in the Customer Materials, Customer will provide end users with all necessary disclosures and gain all necessary consents from end users and/or require Customer’s Agency Clients to provide end users with all necessary disclosures and gain all necessary consents. Customer agrees and acknowledges that this responsibility is the sole responsibility of the Customer, and Lyris shall have no obligation to any of Customer’s end users.
    2. 4.2Lyris Obligations. Lyris shall use commercially reasonable efforts to make the Services secure. Lyris shall not make Customer’s passwords available to anyone who is not an authorized agent or employee of Lyris.
  5. 5.Warranty; Disclaimer.
    1. 5.1Limited Warranties
      1. 5.1.1The Services in the nature of professional services shall be performed in a professional and workmanlike manner. If specifications are incorporated in any Service Schedule for the performance of professional services, Lyris warrants that such Professional Services and any Deliverables provided will substantially conform to the specifications set forth in the applicable Service Schedule for a period of ninety (90) days following the provision of such Service or Deliverable.
      2. 5.1.2To Lyris’ knowledge as of the date any Deliverable is first delivered to Customer, the Deliverable does not infringe any third party’s intellectual property right.
    2. 5.2DISCLAIMER. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 5, CUSTOMER’S USE OF THE SERVICES AND DELIVERABLES IS AT CUSTOMER'S SOLE RISK, ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. LYRIS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN PERFORMANCE OF HOSTED SERVICES; HOWEVER, EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, LYRIS MAKES NO WARRANTY AND SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LYRIS DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES (OR ANY OF THEM) WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. LYRIS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE HOSTED SITE AND/OR OTHER PORTIONS OF THE INTERNET.
    3. 5.3Remedies.
      1. 5.3.1If the Services do not conform to a warranty set forth in Section 5.1.1 above, then Lyris’ sole obligations (and Customer’s sole remedies) shall be to (i) re-perform the Services in conformance with the warranty without charge to Customer; or (ii) refund the Fees paid by Customer for the nonconforming Services. Lyris shall provide (i) or (ii) within sixty (60) days following Customer’s written notice to Lyris that the Services do not conform to such warranty.
      2. 5.3.2If any Deliverable does not conform to the warranty set forth in Section 5.1.1 above, then Lyris’ sole obligations (and Customer’s sole remedies) shall be to (i) modify the Deliverable to conform to the specifications without charge to the Customer; or (ii) refund the fees paid by Customer for the nonconforming Deliverable. Lyris shall provide (i) or (ii) within sixty (60) days following Customer’s written notice to Lyris that the Deliverable does not conform to such warranty.
  6. 6.LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST DATA (OR ITS USE), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO A SERVICE SCHEDULE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR: (A) EITHER PARTY’S OBLIGATION TO INDEMNIFY THE OTHER AS PROVIDED IN SECTION 7 BELOW, (B) CUSTOMER’S OBLIGATION TO PAY AMOUNTS DUE AND OWING UNDER A SERVICE SCHEDULE; AND/OR (C) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID (OR OWING) BY CUSTOMER UNDER THE APPLICABLE SERVICE SCHEDULE FOR SERVICES PROVIDED IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
  7. 7.Indemnification.
    1. 7.1Lyris Indemnity. Lyris agrees to defend, indemnify, and hold Customer and its officers, directors, employees, and agents harmless from and against all damages, costs, liabilities, expenses (including without limitation reasonable attorney’s fees) and settlement amounts incurred in connection with any suit, claim, or action by any third party (a “Claim”): (i) alleging that the technology used by Lyris to provide the Services (the “Lyris Technology”) or any of the Lyris Materials, when used within the scope of the Service Schedule, infringes any patent enforceable in the United States, copyright, trademark, or service mark of a third party and/or (ii) arising from or relating to Lyris’s gross negligence or willful misconduct. In addition to the foregoing, if the Lyris Technology or Lyris Materials are, or in the opinion of Lyris may become, the subject of any claim for infringement or if the Lyris Technology or Lyris Materials are adjudicatively determined to be infringing, then Lyris may, at its sole option and expense (A) modify the Lyris Technology/Lyris Materials so that it becomes non-infringing; (B) replace the Lyris Technology/Lyris Materials with non-infringing matter that is functionally equivalent or (C) obtain a license for Customer to continue to use the Lyris Technology/Lyris Materials provided hereunder. If Lyris determines that (A), (B), and/or (C) are not practicable, then either party may terminate the applicable Service Schedule and Lyris shall provide Customer with a refund of (as applicable) any prepaid Fees for Services that were to be provided following the effective date of termination, or Fees that Customer paid for the affected Deliverable. This Section 7.1 states Lyris’s entire obligation and Customer’s sole and exclusive remedies regarding the intellectual property rights of any third party.
    2. 7.2Indemnification of Lyris.Customer agrees to defend, indemnify, and hold Lyris and its officers, directors, employees, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees) and settlement amounts incurred in connection with any Claim arising from or relating to Customer’s (i) breach of any of its obligations or representations set forth in section 3.1 or 4.1 above and/or (ii) Customer’s gross negligence or willful misconduct.
    3. 7.3Procedures.Each indemnifying party’s obligations as set forth in this Section 7 are subject to the other party: (i) giving the indemnifying party prompt written notice of any such Claim; (ii) giving the indemnifying party sole control over the defense and settlement of any such Claim; and (iii) providing full cooperation for the defense of any such Claim, at the indemnifying party’s expense.
  8. 8.Term & Termination.
    1. 8.1Term. Unless earlier terminated pursuant to Section 8.2 below, the term of each Service Schedule shall commence on the Effective Date (as defined in such Service Schedule) and continue for a period specified in such Service Schedule (this period is hereinafter referred to as the “Minimum Term”). Unless the applicable Service Schedule otherwise provides, a Service Schedule shall automatically renew for successive and consecutive 12 month periods (each a “Renewal Term”), unless either party provides written notice of nonrenewal no fewer than ninety (90 days prior to the expiration of the then-current Minimum Term or Renewal Term.
    2. 8.2Termination.
      1. 8.2.1Termination for Breach. Either party may terminate a Service Schedule for the other party’s breach of a material obligation thereunder by providing at least thirty (30) days’ prior written notice of the breach as provided in Section 9 below; provided that if the breaching party cures the breach within the thirty-day notice period, the Service Schedule shall not terminate. Notwithstanding the foregoing, if Customer’s use of the Services in violation of any term of a Service Schedule adversely impacts Lyris’s ability to provide services to other customers, Lyris may: (i) immediately suspend Customer’s use of the Services and provide prompt written notice of the suspension to Customer; and/or (ii) terminate the applicable Service Schedule upon written notice to Customer reasonably describing the violation; such termination to be effective if the violation is not cured within three (3) days of the date the notice is delivered to Customer. In the event of termination by Lyris pursuant to this Section 8.2.1, Customer shall pay to Lyris all amounts due and owing under applicable Service Schedule as of the termination date (including any fees relating to the unexpired portion of the Minimum Term or then-current Renewal Term).
      2. 8.2.2Customer Notice of Termination. Any notice of Customer’s election to terminate a Service Schedule must be sent via email to Lyris’s customer service cancellation address: servicecancellation@lyris.com.
    3. 8.3Effect of Termination. . All terms of a Service Schedule that are expressly or by their nature impliedly intended to survive the expiration or earlier termination of such Service Schedule shall not be affected by such expiration or termination. Upon termination, each party shall immediately return to the other all Confidential Information in its possession, subject to any remaining rights in such property that may exist under applicable Service Schedule. Notwithstanding the foregoing, Lyris reserves the right to hold and prevent the copying and/or export of the Data until all undisputed amounts owing by Customer under the applicable Service Schedule are paid in full. If Lyris exercises its right to discontinue or disable Services as provided in a Service Schedule and, within six (6) months thereafter, Customer has not paid to Lyris all undisputed amounts then owing, Lyris shall then have the further right to delete such Data.
  9. 9.Notices. Except for Customer’s notice of termination of any Service Schedule pursuant to Section 8.2 above (which shall be via email to servicecancellation@lyris.com), notices to the parties shall be sent by: (i) personal delivery; (ii) certified mail, return receipt requested; (iii) recognized overnight courier with a printed confirmation of receipt; (iv) facsimile at the fax number noticed on the cover page of the applicable Service Schedule (or such other fax number as a party may designate by written notice delivered in accordance with this provision); or (v) email at the address indicated on the cover page of the applicable Service Schedule (or to such other address as a party may specify by written notice sent in accordance with this provision).
  10. 10.Confidential Information. "Confidential Information" shall mean any non-public information of the other party that is designated as confidential, or that the receiving party knew or reasonably should have known was confidential. Without limiting the generality of the foregoing, the terms and conditions of each Service Schedule shall be considered Lyris and Customer Confidential Information. Confidential Information shall not include any information which a party can demonstrate (i) was rightfully in its possession prior to the date of disclosure to it by the other party; (ii) at the time of disclosure or later, is published or becomes part of the public domain through no act or failure to act on the part of a party; (iii) a party has developed independently without reference to any Confidential Information of the other party; or (iv) came into such party’s possession from a third-party who had a bona fide right to make such information available. The party receiving Confidential Information will not at any time disclose to any person or use except as expressly permitted in the applicable Service Schedule, Confidential Information of the other party without the prior written consent of such other party. Each party shall limit disclosure of Confidential Information to its employees or agents who have a need to know related to the parties' business relationship. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the other party as required by court order or other compulsory legal process, provided that the receiving party first notify the other party of the compelled disclosure as soon as reasonably practicable in advance of the compelled disclosure. Upon termination of a Service Schedule, the recipient of Confidential Information shall promptly deliver to the other party or destroy any and all such information in its possession or under its control, and any copies made thereof which the recipient of said information may have made, except as the parties by prior express written permission have agreed to retain. Notwithstanding the foregoing, a recipient of Confidential Information may retain, subject to these Terms, a copy of the Confidential Information as required for compliance with its internal recordkeeping requirements and shall not be deemed to have violated its obligations with respect to returning or destroying Confidential Information to the extent such Confidential Information is located on electronic back-up tapes in accordance with such recipient’s normal procedures for backing-up data and where such back-up tapes are not accessible to such recipient’s employees or officers other than those employees and officers whose duties relate to information technology support for the recipient.
  11. 11.General.
    1. 11.1Governing Law; Venue. Each Service Schedule is governed in all respects by the laws of the State of California without giving effect to its conflict of laws principles. The exclusive jurisdiction and venue for all disputes arising out of or relating to any Service Schedule shall be the state and federal courts located in Alameda County, California. The prevailing party in any such dispute shall be entitled to attorneys’ fees and its litigation or related expenses in any suit or proceeding with respect to the subject matter of a Service Schedule or arising from or related to it, or to interpret or enforce the Service Schedule. In the event the Customer is outside of the United States, where the Agreement is in conflict with local law, the Agreement will be governed by local law.
    2. 11.2Relationship Between the Parties. Lyris’s relationship with Customer is that of an independent contractor, and nothing herein is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship.
    3. 11.3Notices. All notices permitted or required under a Service Schedule shall be in writing and shall be by personal delivery, facsimile transmission, electronic mail, overnight courier, or US mail, and deemed received upon personal delivery, acknowledgment of receipt of facsimile transmission, when sent upon email transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the US mail. Notices shall be sent to the person who has signed the Service Schedule (at the address set forth therein) or to such other person or address as either party may specify in writing. Each party shall deem a document faxed to it as an original document.
    4. 11.4Construction. If any provision of these Terms or any Service Schedule is unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity shall not render the Service Schedule unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions. Provisions that should reasonably be considered to survive termination of a Service Schedule shall survive.
    5. 11.5No Waiver. The failure of either party to require performance by the other party of any provision of a Service Schedule shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision of a Service Schedule be taken or held to be a waiver of the provision itself. Neither party shall be liable under a Service Schedule by reason of any failure or delay in the performance of its obligations under such Service Schedule (except for the payment of money) on account of any cause beyond the reasonable control of such party.
  12. 12.No Assignment.Neither party may assign, voluntarily, by operation of law or otherwise, any rights or obligations under a Service Schedule without the other party’s prior written consent, which may not be unreasonably withheld; provided that transfer to any person or entity controlling, controlled by or controlled in conjunction with such party or to any person or entity that acquires substantially all of the shares, assets, or business of such party shall not be deemed an assignment for the purposes of this provision. Any attempted assignment without such consent will be void. Subject to the foregoing, each Service Schedule will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
    1. 12.1Entire Agreement; Modification. Each Service Schedule completely and exclusively states the agreement of the parties regarding its subject matter. Each Service Schedule supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. Neither these Terms nor any Service Schedule shall be modified except by a subsequently dated written amendment signed on behalf of each party by its duly authorized representatives, and any provision on a purchase order purporting to supplement or vary the provisions of a Service Schedule shall be void. Any handwritten modification to a Service Schedule shall be void unless the person signing said Service Schedule on behalf of Lyris initials such handwritten modification.

Updated: February 27nd, 2014