MASTER SERVICE AGREEMENT

Updated November 7th, 2018

 

This MASTER SERVICE AGREEMENT (the “Agreement”) governs use of the service (“Service”) offered by Visage, Inc. (“Visage”) that is identified on one or more ordering documents executed by the parties that reference this Agreement (“Order Form(s)”). Specific business terms associated with subscription to the Service will be set forth on the Order Form. This Agreement is a legally binding contract between the customer listed in the Order Form (“Customer”) and Visage and is effective as long as any Order Form remains in effect. This Agreement governs all Order Forms; any conflicting or additional terms, conditions, or obligations are of no force or effect unless agreed to in a writing signed by the parties. In the event of any conflict between the terms of an Order Form and the terms of this Agreement, the Order Form shall control.

 

1.              Scope.

1.1            Access to the Service.  On the Subscription Start Date (as defined and stated in the applicable Order Form) and subject to the terms and conditions contained herein, Visage shall provide the Service to Customer.  In addition, Customer may designate certain individuals (“Users”) to use and have access to the online, hosted dashboard portion of the Service and the associated generally published technical documentation for the Service (“Documentation”) provided such use and access is for Customer’s own internal business operations (and not for the benefit of a third party).  For the avoidance of doubt, this Agreement only permits Customer to access and use the dashboard portion of the Service (“Dashboard”); Customer will not receive or have access to a copy of the code or software that underlies the Service or receive a copy of the Service itself.

1.2            Job Postings. Customer’s primary use of the Service will be to post employment opportunities to the Service (“Job Posting”). Customer may only post the number of Job Postings, if indicated, under the relevant Order Form. Once a Job Posting is submitted to the Service, such Job Posting will count towards Customer’s allotted Job Postings for the period, regardless of whether Customer cancels or no longer requires such Job Posting. Job Postings may only be edited prior to such Job Posting being submitted to Visage’s recruiting community.  Job Postings must conform to any requirements stated on the relevant form (within the Service) that Customer will fill out to create the Job Posting.

1.3            Resumes.  During the term of this Agreement, Customer may receive resumes, photographs, online profiles, and other personal information from third party individuals through its use of the Service (“Resumes”).  Resumes are not the property of Customer and Customer agrees that it will only use Resumes (a) internally for the sole benefit of Customer and its Users, and (b) for the purpose of recruiting, hiring and managing the individuals featured in such Resumes for positions at Customer.  Customer agrees that other than the use described in the immediately preceding sentence, Customer will at all times maintain the confidentiality of the Resumes in accordance with the terms of Section 4 (Confidentiality). As part of its provision of the Service, Visage will provide Customer with qualified Resumes; where “qualified” means that Visage have determined that such Resume meets the requirements set forth in the Job Posting.

1.4            Restrictions.  Customer shall not directly or indirectly: (a) modify, translate, copy or create derivative works based on the Service or any element of the Service, (b) create internet “links” to or from the Service, (c) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, the API or underlying ideas or algorithms of the Service in whole or in part, except as and only to the extent this restriction is prohibited by law, (d) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement, (e) use the Service in any way that violates any applicable federal, state, local or international law or regulation, (f) introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, (g) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service, (j) use the Service in a manner that is obscene, threatening, libelous, or otherwise unlawful or tortious, including uploading material into the service that is harmful or violates any third party privacy rights or, (k) use the Resumes for the benefit of any third party.  Customer will use the Service in compliance with any use limitations or restrictions set forth in an Order Form.

1.5            User Accounts and Customer Responsibilities. As part of the registration process, one User will be added to the Customer’s account. Customer may add new Users by making a request to support@visage.jobs. Customer shall be responsible for ensuring that all Users are aware of and bound by obligations, restrictions and protections consistent with this Agreement for the benefit of Visage.  Customer will also (a) be responsible for ensuring the security of Customer’s account and confidentiality of all user IDs and passwords for the Service, (b) prevent unauthorized access to, or use of, the Service, and (c) notify Visage promptly of any unauthorized use of the Service or any breach, or attempted breach, of the security of the Service.  Customer is responsible for all activities of its Users on the Service and is responsible for all uses of Customer’s account. It is also solely Customer’s responsibility to ensure that Customer has the right to use and access the Service where Customer is geographically located.  Customer represents and warrants that Customer is not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Visage is prohibited from doing business. Customer understands and agrees that while Visage has no obligation to monitor Customer’s use of the Service, Visage may monitor such use of the Service and may prohibit any use it believes may be in violation of the restrictions set forth in this Agreement or any Order Form.  Customer also understands and agrees that Visage may suspend Customer’s or any User’s use of or access to the Service that Visage reasonably believes may be in violation of this Agreement or any Order Form.

1.6            Customer’s Equipment.  Customer is responsible for obtaining and maintaining any equipment and ancillary services (including the payment of any additional fees therefore) needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, “Equipment”).  Customer is also responsible for maintaining the security of Customer’s Equipment, and for all uses of Customer’s Equipment.

2.              Service Levels and Support.  The Service will be available 99% of the time, except for periods of scheduled maintenance. General availability will be calculated per calendar month. If the Service is available less than 99% of the time in any calendar month (excluding scheduled maintenance) (“Service Outage”), Visage will credit Customer by adding one (1) Job Posting to Customer’s allotment in the immediately proceeding month (“Service Credit”). In order to receive a Service Credit, Customer must notify Visage of any Service outage promptly after becoming aware of it, but no more than twenty-four (24) hours of such Service outage, and request a Service Credit within thirty (30) days of the month in which the Service Outage occurred.  In no event will a Service Credit be provided if a Service Outage did not actually occur, as confirmed by Visage in good faith. Customer can receive a maximum of one (1) Service Credit per calendar month. Visage will provide basic technical support to Customer, free of charge, on weekdays during the hours of 9:00 am through 6:00 pm Pacific Time, excluding holidays. Requests for support can be made via the support request function in the Service.

3.              Proprietary Rights.

3.1            Visage’s Ownership.  The Service (and all enhancements and improvements made to the Service) is owned and operated by Visage and its licensors, and the Service (and any intellectual property and other rights relating thereto) is and will remain the property of Visage and its licensors and suppliers. The Service is protected by U.S. and international copyright, trademark, and other laws, and Customer acknowledges that these rights are valid and enforceable.

3.2            Customer’s Ownership.  Subject to the restrictions contained herein, Customer owns all right, title, and interest in and to any content uploaded to the Service by Customer (“Customer Content”).

4.              Confidentiality.

4.1            Definitions.  Each party (in its capacity as a receiver of Confidential Information, the “Recipient”) understands that, in connection with this Agreement, the other party (in its capacity as a Disclosing Party of Confidential Information, the “Disclosing Party”) may disclose non-public business, technical or financial information relating to the Disclosing Party’s business. Such information shall be considered the “Confidential Information” of the Disclosing Party provided that it is marked or otherwise designated at the time of disclosure as “confidential” or “proprietary” or the like.  Visage’s Confidential Information includes, without the requirement of any marking or further indication, (a) the pricing and other terms reflected in all Order Forms hereunder, (b) any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Service, (c) the design and architecture of the Service, (d) the computer code, internal documentation, and design and functional specifications of the Service, and (e) the Specifications.  Customer’s Confidential Information includes, without the requirement of any marking or further indication, (i) Customer Content and, (ii) any payment related information provided by Customer to Visage. In addition, the Resumes provided to Customer shall be maintained as Confidential Information by Customer.

4.2            Obligations.  The Recipient agrees to (a) hold the Disclosing Party’s Confidential Information in strict confidence and not disclose such Confidential Information to any third party without the prior written consent of a duly authorized representative of the Disclosing Party, or (b) use such Confidential Information for any purpose other than to carry out its obligations under this Agreement. Recipient also agrees that Confidential Information shall be disseminated only to those employees, officers, directors, consultants, and contractors with a clear and well-defined “need to know” purpose who are informed of and bound by the obligations of this Agreement or another agreement with terms just as protective of the Disclosing Party as the terms of this Agreement.

4.3            Mandatory Disclosure. Any disclosure by the Recipient of the Disclosing Party’s Confidential Information required by a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) shall be subject to the terms of this Section. Prior to making any such disclosure pursuant to a Legal Order, the Recipient shall provide the Disclosing Party with (a) prompt written notice of such order (to the extent legally permitted), and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing the notice and assistance required herein, the Recipient remains subject to the Legal Order, the Recipient shall disclose no more than that portion of the Confidential Information which (on the advice of the Recipient’s legal counsel, such Legal Order specifically requires the Recipient to disclose.  Any Confidential Information disclosed pursuant to a Legal Order shall otherwise remain confidential and subject to the restrictions on the use or disclosure in this Agreement.

4.4            Feedback. From time to time, Customer may provide Visage with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Visage Technology (“Feedback”). Feedback shall not be deemed to constitute Confidential Information or to impose any confidentiality obligations on Visage.  Customer agrees that Visage is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind.

5.     Data & Content.

5.1            Customer Content.  ​Customer hereby expressly grants, and represents and warrants that Customer has all rights necessary to grant, to Visage, a non­exclusive, worldwide license to use, distribute, modify, reproduce, publically display, publically perform, and create derivative works of any Customer Content for the purposes of (a) providing the Service, or (b) developing, maintaining, supporting, or improving the Service. Customer is solely responsible for maintaining back-ups of the Customer Content.

5.2            Service Data. Customer hereby grants Visage the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and its related systems and technologies (including, without limitation, information concerning Customer Content and data or models derived therefrom), and  Visage will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Visage offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

5.3            Data Storage.  Customer acknowledges that the Service is provided from (and requires the transfer and storage of content and data to) servers located in the United States. Customer consents to such transfer and storage of information on its behalf and its employees and contractors. Customer further acknowledges that the Products can be accessed, and information collected, from any location, and that Customer assumes all responsibility for such activities.

5.4            Data Security.  Visage will maintain industry standard security measures for the protection of Customer’s account and data against accidental or unauthorized access or use. Visage shall take all reasonable steps to prevent or correct any unauthorized access or intrusion into Customer’s account, which shall include, without limitation, correcting the circumstances that lead to the failure or unauthorized access, preventing further intrusions, and recovering any information copied or removed from Customer’s account. Visage’s obligations as to the security of Customer’s account shall be limited to the extent Customer fails to notify Visage upon becoming aware of such unauthorized access, or through Customer’s failure to select secure passwords, change passwords frequently, or maintain the confidentiality of those passwords.

6.              Fees, Payment and Taxes.

6.1            Fees and Payment. Customer will pay Visage the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Customer will pay all invoices in accordance with the payment terms indicated in the Order Form.  Visage reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Visage has billed Customer incorrectly, Customer must contact Visage no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. All Fees are payable in U.S. Dollars and are non-cancelable and non-refundable except as expressly stated herein.

6.2            Taxes.  The Fees payable hereunder are exclusive of any sales, use, excise, value added, import, or other applicable taxes, tariffs or duties (“Taxes”).  Customer is solely responsible for payment of all Taxes except for any taxes based solely on Visage’s net income.  If Customer is required to pay any Taxes, Customer shall pay such Taxes with no reduction or offset in the Fees payable to Visage hereunder. If Visage has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer agrees to pay such Taxes and Visage shall charge Customer’s payment instrument or invoice the appropriate amount to be paid by Customer.

6.3            Unpaid Fees.  If any Fees are not paid when due, Customer shall owe interest on such unpaid Fees at accrual rate of 1.5% per month, or the highest legal interest rate, whichever is less. Customer shall also be responsible for all costs and expenses, including reasonable attorneys’ fees, expended or incurred by Visage in connection with the collection of any unpaid amounts hereunder.

7.              Term and Termination.

7.1            Term and Renewal.  Except if specified in an Order Form and unless earlier terminated as provided for herein, this Agreement shall begin on the Effective Date stated on the Order Form and continue for the Initial Term stated on the Order Form; this Agreement shall automatically renew for consecutive periods equal to the Initial Term, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term (as defined on the Order Form).

7.2            Termination for Cause.  In addition to any other remedies either party may have, each party may also terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days’ (10 days in the event of non-payment) after notice. Notwithstanding the foregoing, Visage may terminate this Agreement without notice or opportunity to cure if required to do so by any court or government authority in any country.

7.3            Effect of Termination.  Upon non-renewal or termination of this Agreement for any reason, Customer agrees to pay in full for the Service up to and including the last day on which the Service is provided. If Customer terminates this Agreement for Visage’s uncured breach, Visage shall provide Customer with a pro-rata refund any pre-paid, unused Fees. Upon expiration or termination of this Agreement for any reason, Customer agrees to cease all use of the Service and any associated Documentation. Visage will, upon such expiration or termination, deactivate or delete any related Customer Content, information, and files, and restrict any further access to such data, information, and files. Customer understands and agrees that upon termination of this Agreement or an applicable Order Form, Customer’s access to the Service and any portion of the Service shall be immediately terminated.

7.4            Survival.  Sections 3, 4, 5.2, 7.3 8.3 and 9-11shall survive the non-renewal or termination of this Agreement.

8.              Warranty and Disclaimer.

8.1            Warranty from Visage.  Visage shall use reasonable efforts consistent with prevailing industry standards to (a) maintain the Service in a manner that minimizes errors and interruptions in the Service, and (b) provide the Service in a manner that substantially complies in all material respects with the Documentation. The foregoing does not cover issues or failure resulting from abuse, misuse, alteration, acts of nature or disaster, or use of the Service on or in connection with any hardware or software not specified in the Documentation. Visage’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this Section shall be, in Visage’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity.

8.2            Warranty from Customer.  Customer represents and warrants that: (a) it has the legal capacity to enter into this Agreement; (b) it is not located in a United States embargoed country; and (c) it will comply with all applicable laws, and regulations in connection with your use of the Service and in accordance with the terms and conditions specified in this Agreement.

8.3            Disclaimer.  THE ABOVE WARRANTY IS CUSTOMER’S EXCLUSIVE WARRANTY AND REPLACES ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICE IS PROVIDED “AS IS” AND CUSTOMER ACKNOWLEDGES THAT Visage DOES NOT WARRANT THAT (A) THE OPERATION OF THE SERVICE OR THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (B) THE SERVICE IS NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE, OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE OR THE SOFTWARE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. WITHOUT LIMITING THE FOREGOING, VISAGE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT CUSTOMER WILL REALIZE, OBTAIN, OR receive ANY RESULTS FROM THE SERVICE.  VISAGE DOES NOT PROMISE, WARRANT, OR GAURANTEE THAT CUSTOMER’S USE OF THE SERVICE, OR THE SERVICE ITSELF, WILL RESULT IN COMPLIANCE WITH ANY HIRING, EMPLOYEMNT, OR LABOR RELATED LAWS, RULES, PRACTICES, REGULATIONS OR REQUIREMENTS OF ANY KIND.

9.              Indemnification.

9.1            Visage’s Indemnity.  Visage shall defend any third party claim or action brought against Customer or its directors, officers, employees, or contractors to the extent based on the allegation that the software underlying the Service infringes the intellectual property rights of such third party. Visage’s payment obligations with regard to the defense of claims shall only include: payment for the costs of defense incurred by Visage and (a) any settlements that Visage agrees to in a writing signed by an authorized officer of Visage, or (b) any final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply (i) if the Service is combined with other products, processes or materials that are not reasonably contemplated by the Documentation, (ii) where Customer’s use of the Service is not strictly in accordance with this Agreement or the published Documentation, or (iii) where Customer continues allegedly infringing activity after being notified to cease such infringing activity.

9.2            Customer’s Indemnity.  Customer agrees to defend any third party claim or action brought against Visage directors, officers, employees, or contractors related to (a) any allegation that Customer Content violates any privacy rights or infringes the intellectual property rights of such third party, and (b) Customer’s breach of Section 1.3 (Resumes).  Customer’s payment obligations with regard to the defense of such claims shall only include: payment for the costs of defense incurred by Customer and (i) any settlements that Customer agrees to in a writing signed by an authorized officer of Customer, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.

9.3            Procedures.  Each party’s obligations under Sections 9.1 and 9.2 of this Agreement are conditioned on the party defending the claim (“Defending Party”) brought against the other party (the “Defended Party”) (a) providing the Defending Party with prompt written notice of any claim, (b) granting the Defending Party the sole control of the defense or settlement of the claim (provided that the Defending Party shall not agree to any settlement that requires the Defended Party to pay any amounts not covered by the Defending Party or to make any admission of wrongdoing) and (c) providing reasonable information and assistance to the Defending Party in the defense or settlement of the claim at the Defending Party’s expense.

9.4            Options. If Customer’s use of the Service has become, or in Visage’s opinion is likely to become, the subject of any claim of infringement, Visage may, at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) replace or modify the Service to make it non-infringing, or (d) if Visage, in its sole discretion, determines that options (a)-(b) are not commercially practicable, terminate this Agreement and refund any pre-paid unused Fees.

9.5            Sole Remedy.  THIS SECTION 9 STATES VISAGE’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

10.                     LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR A BREACH OF SECTION 1.4 (RESTRICTIONS), 1.5 (USER ACCOUNTS AND CUSTOMER RESPONSIBILITIES) 4 (CONFIDENTIALITY), OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNITY), NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.                     General Terms.

11.1         Force Majeure. A delay by either party in the performance of its obligations under the Agreement shall not be deemed a default of the Agreement to the extent that the delay is attributable to a Force Majeure Event and could not have been prevented by the non-performing party taking reasonable precautions.  For the purposes of this Agreement, “Force Majeure Event” means an act of war or terrorism, a riot, civil disorder, or rebellion, a fire, flood, earthquake, or similar act of God or a strike, lockout or similar labor dispute (though only if such strike, lockout or labor dispute does not involve the employees of the non-performing party), or electrical, internet or telecommunications outage that is beyond the reasonable control of the affected party.

11.2         Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of California and the United States as applied to agreements among California residents entered into and to be performed entirely with California.  Any judicial action or proceeding brought in connection with this Agreement shall be brought in San Francisco County in the state or federal courts of California.

11.3         Waiver. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

11.4         Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, unenforceable, or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

11.5         Notices.  Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and directed to the address in the preamble to this Agreement or otherwise provided to the other party in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt), (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid or (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.

11.6         Publicity.  Visage may use the name or logo of Customer to reference Customer as a customer of Visage either on Visage’s promotional materials or website.

11.7         Entire Agreement. This Agreement, together with any Order Forms constitute the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument.

11.8         Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing by non-preprinted agreements clearly understood by both parties to be an amendment and signed by each party hereto.

11.9         Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between Visage and Customer as a result of the Agreement or use of the Software. Each party is solely responsible for its actions or inactions, the parties shall not be deemed to be agents of each other and no joint venture, franchise, partnership, agency, or other relationship shall be created or implied by this Agreement.

11.10       Assignment. Customer may not assign, transfer, or sublicense this Agreement or delegate or otherwise transfer any of its obligations or performance under this Agreement without Visage’s prior written consent, which shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this provision is void. Visage may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement (including subcontracting the provision of the Service or any portion thereof) without consent.

Headings. The headings and section titles in this Agreement are for convenience only and shall not be considered a part of, or be deemed to affect the construction or interpretation of, any provision of this Agreement