These SaaS Subscription License Terms constitute a binding agreement by and between Tempo Software Inc., with principal offices at 67 South Bedford Street, Suite 400 West, Burlington, MA 01803 (“Tempo”) and the customer subscribing (“Customer”) via any order form, purchase order or other similar document mutually agreed by the parties (e.g., when signed if a physical document, or when entered into online via a Tempo controlled website or app) (each an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”). These SaaS Subscription License Terms together with any and all Order Forms are referred to as the “Agreement” collectively.
WHEREAS, Tempo develops and licenses access to its proprietary products and services, along with any documentation, patches, fixes and updates to such products and services provided from time to time by Tempo (collectively, the “Tempo Services”); and
WHEREAS, Customer wishes to subscribe to and access the Tempo Services;
NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties agree as follows:
1. Tempo Services.
1.1. Tempo Services License Grant. Subject to the terms and conditions of this Agreement, Tempo hereby grants to Customer a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Tempo Services during the Term (defined in Section 4 below), solely by the number of authorized users as set forth on the applicable Order Form, and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively the “Documentation”). Tempo may decide in its sole discretion to modify, enhance or otherwise change the Tempo Services. Any and all bug fixes, updates, upgrades, modifications and new releases of the Tempo Services (collectively “Improvements”) provided by Tempo will become part of the Tempo Services subject to the provisions of this Agreement; provided that Tempo may also, in its sole discretion, license any Improvements on separate, different or additional terms (including for an additional fee). If any Service Level Agreement is attached hereto as Exhibit A (“SLA”), Tempo shall use commercially reasonable efforts to make the Tempo Services available in accordance with the SLA.
1.2. General License Restrictions. Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to) (a) download or otherwise obtain a copy of the Tempo Services software in any form; (b) reverse engineer or otherwise derive the source code of the Tempo Services or software or otherwise modify, reverse compile, disassemble, or translate the Tempo Services or software or create any derivative works thereof; (c) use the Tempo Services on behalf of any third party or for any purpose other than as described in this Agreement; (d) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Tempo Services or use it on a service bureau basis; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (f) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Tempo Services or attempt to gain unauthorized access to the Tempo Services or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Tempo’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Tempo Services, or Documentation, or on any copies made in accordance with this Agreement; (i) use, or authorize or permit the use of, the Tempo Services except as expressly permitted herein; or (j) use the Tempo Services to perform any activity that is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity that breaches the rights of any third party.
1.3. Limited Access. The Tempo Services may be used by Customer (a) only for its internal business purposes and own direct benefit; (b) only by the number of persons for whom the required license fee (if any) has been paid, and all such use may only be by those persons using the Tempo Services at the Customer’s direction and for the benefit of Customer in the course and scope of their service to Customer, subject to the terms hereof; (c) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (d) in compliance with all applicable laws, rules, regulations and industry standards, and in compliance with all Documentation and instructions provided by Tempo. In order to access some features of the Tempo Services, Customer may have to register or create an account. Customer may never use another's account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account access credentials secure, and for notifying Tempo immediately of any breach of security or unauthorized use of its account. Customer shall not circumvent, disable or otherwise interfere with security-related features of the Tempo Services, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Tempo Services, or the content therein. To the extent the Tempo Services allows uploading or posting of content or data, Customer shall ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third party rights.
1.4. Evaluation License. If the Tempo Services are licensed on an evaluation basis, the term of such license is thirty (30) days from the first use unless a longer period is specified in writing, after which time the evaluation license ceases. Evaluation use of the Tempo Services is intended solely for Customer to determine the compatibility of the Tempo Services with Customer’s business needs, and only to be used in a non-production test environment. Tempo has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period and the SLA shall not apply, and any Tempo Services provided for beta and/or evaluation purposes are provided “as is” and without any warranties, notwithstanding anything to the contrary herein. Note that an evaluation license is to be distinguished from access that may be granted through any Early Access Program (“EAP”) that Tempo may deploy from time to time in its sole discretion.
1.5. Notification; Suspension. Customer shall immediately notify Tempo upon its knowledge or belief that the Tempo Services are or may be being used in violation of this Article 1 or are otherwise being used in connection with a breach of this Agreement. In addition, Tempo may suspend Customer’s right to access the Tempo Services at any time (a) if Tempo determines in its sole discretion that Customer’s use of the Tempo Services is interrupting or interfering with the normal operation of the Tempo Services, or (b) in the context of any EAP.
1.6. Third Party Services. The Tempo Services may integrate and/or interact with third party products or services, such as open-source software, via APIs or browser extensions (collectively “Third Party Services”). Tempo has no affiliation, association, endorsement, or sponsorship by any Third Party Services with which it integrates or interacts from time to time, and Tempo makes no claim, representation or warranty of any kind, type or nature concerning any Third Party Services, nor Customer’s use of or compliance with any third party terms of service for any such Third Party Services (collectively “Third Party Terms”). It shall be Customer’s sole responsibility to analyze and interpret any applicable Third Party Terms and interpret and comply therewith. Third Party Services are provided WITHOUT WARRANTIES OF ANY KIND AND DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING (BUT NOT LIMITED TO) THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE THIRD PARTY SERVICES. By using the Tempo Services, Customer hereby releases Tempo and waives any and all claims or claim rights that it may have against Tempo, and indemnifies Tempo against any claims that any third party may have against Tempo, including with respect to use of any Third Party Services, including if accessed or used via the Tempo Services, and with respect to Third Party Terms, applicable privacy policies or any other rules or regulations of such third parties. Tempo is not responsible for any failure or inability to integrate with such Third Party Services due to factors outside Tempo’s control, such as if any Third Party Services changes, is blocked, or eliminated.
1.7. Internet Access and Equipment. Customer is responsible for maintaining access to the internet, and for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Tempo Services in accordance with the Documentation, and for maintaining the security thereof, all at Customer’s own cost and expense.
2. Proprietary Rights.
2.1. Customer Data. Customer shall own all title to Customer Data (defined below) and Tempo shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with Tempo’s performance hereunder and as otherwise expressly permitted herein. As used herein, “Customer Data” shall mean any proprietary raw data owned by Customer independent of this Agreement, and that Customer may input into the Tempo Services. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Tempo Services, which shall be considered Tempo Data (defined below). If and to the extent necessary for operation of the Tempo Services by Customer, Customer hereby grants to Tempo a limited, non-exclusive license during the Term to use the Customer Data within the Tempo Services in order to perform its obligations herein. If Customer makes any suggestions, comments, enhancement requests, recommendations or provides any other feedback to Tempo regarding the Tempo Services (“Feedback”), Tempo shall have the right, without any requirement to compensate Customer, to use and to permit others to use such Feedback for any purpose, including incorporating it into the Tempo Services, which shall be the property of Tempo.
2.2. Tempo Technology. Subject only to the limited rights expressly granted to Customer under Article 1, Tempo owns and shall at all times retain all rights in and to the Tempo Services, including all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Tempo Services, software and the Documentation, and all Tempo Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Tempo Technology”). Subject only to Section 2.1 above, Tempo shall own all rights to (i) any data input into the Tempo Services by or on behalf of Tempo, and (ii) any aggregated and/or anonymized data extracted or derived from the Tempo Services, including all aggregated and/or anonymized usage data, statistical data, transactional data, metadata, market data and other aggregated and anonymized data collected from user data and files (collectively, “Tempo Data”). Without limiting the generality of the foregoing, Tempo may create and market public indexes, analyses or insights created from Tempo Data. Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Tempo Services, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Tempo Technology.
2.3. Legal Compliance. At all times during the Term the parties shall comply with all applicable laws and regulation, including those respecting data privacy, international communications, foreign corrupt practices, the transfer of intellectual property, and the export and import of data and services. Tempo shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, including as set forth in Tempo’s Privacy Notice (www.tempo.io/privacy-notice) and any separate Data Processing Agreement between the parties.
3. Fees; Payment Terms. Customer shall pay Tempo (or its agent) in immediately available funds the applicable subscription and other fees in the amounts and timing as specified in any Order Form (“Fees”). If no payment schedule is specified in an applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement. The Fees, and any fees for any additional services, equipment or subscription extensions that may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement or separately agreed between the parties, invoices shall be due and payable within 30 days following invoice date. Late payments shall be subject to a service charge with respect to the overdue amount equal to the lesser of 1.5% per month or the maximum amount allowed by law.
4. Term; Termination. This Agreement will commence on the Effective Date and shall continue until (a) the Agreement is terminated in accordance with this Article 4, or (b) the parties enter into a new agreement that expressly supersedes this Agreement (the “Term”). Customer may terminate this Agreement at any time for any reason by providing written notice to Tempo. Tempo may terminate this Agreement (a) upon 30 days’ written notice if Customer has materially breached this Agreement and has not cured the same within the 30 day notice period; (b) immediately upon written notice if Customer commits an incurable breach hereof (e.g., reverse engineering or confidentiality); (c) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against Customer or the dissolution or liquidation of Customer; or (d) immediately without notice in the case of any EAP. Upon any termination of this Agreement, Customer shall promptly (i) discontinue all use of the Tempo Services and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Tempo or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Tempo that Customer has complied with these requirements. Tempo shall disengage Customer’s access to the Tempo Services, and both parties shall promptly return to the other or destroy the other party’s Confidential Information (provided that, if termination occurs for any reason other than Customer’s breach, Tempo may retain such information subject to Tempo and Customer agreeing separately on the terms under which Tempo would retain such information). Any payment obligations of Customer, provisions providing for limitations on liability, and those terms that by their nature were intended to survive any termination of this Agreement shall so survive including Articles 2, 5, 6, 7, 8 and 9.
5.1. Confidential Information. As a licensee of the Tempo Services, Customer will have access to certain non-public information of substantial value that Tempo considers proprietary, confidential or both (collectively “Confidential Information”), which substantial value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, the terms of this Agreement, and any performance, warranty and like information relating to the Tempo Services (by whomsoever generated or communicated) shall be deemed Confidential Information of Tempo. Accordingly, Customer (a) shall maintain all Confidential Information in strict confidence, (b) shall not disclose or otherwise make available such Confidential Information to any third party without Tempo’s prior written consent, and (c) shall not use the Confidential Information except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information that, as can be reasonably demonstrated with admissible evidence by Customer: (i) is or becomes a matter of public knowledge though no action or omission of Customer; (ii) was rightfully in Customer’s possession without restrictions on use or disclosure prior to its disclosure by Tempo; (iii) is rightfully obtained by Customer without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to Tempo; (iv) is independently developed by Customer without reference to the Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement and reasonable assistance to Tempo to prevent or limit such disclosure.
5.2. Return of Confidential Information. Upon the written request of Tempo at any time during the Term, Customer shall (a) immediately return to Tempo or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide Tempo with written certification of its compliance with the terms of this Article 5.
5.3. Remedies. Any breach of any part of this Article 5 with respect to the Confidential Information may cause or threaten irreparable harm to Tempo. Accordingly, Tempo shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to Tempo under law or in equity.
6. Warranty. Except in the case of any EAP (for which no warranty of any kind applies), Tempo warrants to Customer that for 60 days after the Effective Date (“Warranty Period”) the Tempo Services (but specifically excluding any Improvements) shall operate in substantial conformity with the Documentation. The foregoing warranty shall not apply if the non-conformance is not replicable or results from third party systems or components used by Customer to access the Tempo Services, including any lack of interoperability with such third party systems or components. Tempo does not warrant that operation of or access to the Tempo Services will be uninterrupted or error-free, or that all reported defects will be corrected. Tempo’s sole liability and Customer’s sole and exclusive remedy for any breach of the limited warranty set forth above is for Tempo to use commercially reasonable efforts to provide an error-correction or work-around for the reported non-conformity. If Tempo is unable to do so within a reasonable period of time, Customer may terminate this Agreement. Tempo shall have no obligation with respect to a warranty claim unless notified of such claim promptly and within the Warranty Period. Tempo shall not be liable in any manner for any interruption in or failure of access to the Tempo Services, nor shall any such interruption or failure of access be deemed a breach of the terms of this Agreement. Tempo is not responsible for end user’s error, errors in inputs or for errors in any Customer Data; Tempo does not independently verify the truthfulness or accuracy of any data or content input into the Tempo Services and is not responsible for the fraud, misrepresentation, negligence or misconduct of any end user or other third party. Tempo Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Tempo’s reasonable control. Tempo does not warrant that the Tempo Services will be uninterrupted or error free; nor does Tempo make any warranty as to the results that may be obtained from use of the Tempo Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 6, THE TEMPO SERVICES ARE PROVIDED “AS IS” AND TEMPO (a) EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY USAGE OF TRADE OR CUSTOM OF DEALING AND (b) DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE TEMPO SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS FREE, OR THAT THE TEMPO SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. Without limiting the generality of the foregoing, Customer’s use of the Tempo Services is at Customer’s sole risk, and Customer is solely responsible for reviewing and evaluating the accuracy and relevance of any information stored on, generated by or received through the Tempo Services, while Tempo cannot and does not guarantee said accuracy.
7. Third Party Claim Defense and Indemnification.
7.1. Intellectual Property Infringement. Tempo shall (a) indemnify and hold harmless Customer from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of any third party claim that the Tempo Services infringes a United States patent, copyright, trademark, or other US intellectual property right of such third party, and (b) pay directly or indemnify Customer with respect to any judgment or settlement amount awarded in connection with such claim. The foregoing obligations are contingent upon Customer providing Tempo (i) prompt notice of such claim (and in any event notice in sufficient time for Tempo to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Tempo at Tempo’s expense. If Customer’s use of the Tempo Services is, or in Tempo’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Tempo may: (x) substitute for the infringing element of the Tempo Services functionally similar software; (y) procure for Customer the right to continue using the Tempo Services; or, (z) terminate this Agreement and refund to Customer that portion of any prepaid Tempo Services Fee associated with any unused portion of the Term. The foregoing defense and indemnification obligations of Tempo shall not apply to the extent the alleged infringement arises out of the alteration or modification of the Tempo Services, use or combination of the Tempo Services with other non-Tempo products, services, hardware, software or processes, or any unauthorized use of the Tempo Services. In addition, Tempo’s obligations and liabilities under this Section 7.1 shall be governed by the limitations on liability set forth in Section 8 below and shall be capped at and included within any calculation of direct damages under that Section 8. THIS SECTION 7.1 SETS FORTH TEMPO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE TEMPO SERVICES.
7.2. Customer Indemnification Obligations. Customer shall indemnify and hold Tempo harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any breach by Customer of this Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content, data or other materials input into the Tempo Services, or otherwise provided, by or on behalf of Customer; (iii) any actual or alleged non-compliance by Customer with applicable laws and regulations; (iv) Customer’s actual or alleged violation of third party privacy rights, including any breach of the scope of the license granted herein; or (v) Customer’s violation of Tempo’s intellectual property rights.
8. Limitation of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT FOR THE EXPRESS INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPT FOR BREACHES OF ARTICLES 1, 2 OR 5 HEREOF, (A) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE TERM. ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, TEMPO DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE AND CUSTOMER SHALL ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE TEMPO SERVICES. CUSTOMER IS RESPONSIBLE FOR ALL USE OF THE TEMPO SERVICES AND BY ALL END USERS, INCLUDING ANY EMPLOYEES, AGENTS AND CUSTOMERS. CUSTOMER IS RESPONSIBLE FOR COMMUNICATING THE TERMS AND LIMITATIONS IN THIS AGREEMENT TO ANY AND ALL SUCH END USERS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON TEMPO’S LIABILITY.
9.1. Notices. All notices required or permitted under this Agreement shall be in writing and shall be sent by hand or overnight courier. Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth above or to such other addresses as may be designated by a party by giving written notice to the other party pursuant to this Section 9.1.
9.2. No Assignment. Customer may not assign this Agreement or any of its licenses, rights or duties hereunder, whether by operation of law or otherwise, without the prior written consent of Tempo. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees. The Tempo Services shall at all times be hosted by or on behalf of Tempo on a server environment of its choosing. Tempo reserves the right to change the server environment from time to time as it deems fit, or outsource hosting or other aspects of the Tempo Services in its sole discretion, so long as the Tempo Services continue to comply with the express requirements of this Agreement.
9.3. Publicity. Customer expressly grants Tempo the right to include Customer in a list of customers on Tempo's website or other promotional material in relation to the Tempo Services for marketing purposes. Customer can deny Tempo this right at any time by submitting a written notice requesting to be excluded from promotional material.
9.4. Waiver. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
9.5. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Tempo Services), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action. The delayed party shall (i) give the other party prompt written notice of such cause; and (ii) use its best efforts to immediately correct such failure or delay.
9.6. Entire Agreement; Construction. This Agreement constitutes the entire understanding between the parties, and supersedes all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.
9.7. Independent Contractors. The relationship of Tempo and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
9.8. Non-Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly (i) solicit for employment or for performance of any services any person employed by Tempo or (ii) hire or engage for any services any person employed by Tempo. In the event of a breach of this non-solicitation clause, Customer shall pay Tempo compensation equal to Tempo's employee's annual salary as liquidated damages, and not a penalty, which Customer agrees is fair and reasonable compensation for Tempo.
9.9. Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. The federal and state courts sitting in Boston shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue, including the objection of forum non conveniens.
9.10. Modifications to Software, Products, Tempo Services & Terms. Tempo may modify or discontinue the Tempo Services or any other software, products or services at any time with or without notice, including without limitation by adding or subtracting features and functionality, third party content, etc. In the event of such modification or discontinuation, Customer’s sole remedy shall be to terminate this Agreement as set forth herein. Continued use of any software, products or services following any such changes will signify Customer’s acknowledgement and acceptance of such changes and satisfaction with the software, products and/or services as so modified. Tempo may change the terms of this Agreement from time to time, by updating these terms as posted online and/or in the applicable software. Any such changes will become effective when notice is received or when so posted, whichever first occurs. If Customer objects to any such changes, its sole recourse will be to terminate this Agreement. Continued use of the software, products or services following such changes will signify Customer’s acknowledgement of such changes and agreement to be bound by such changes.