Last Updated: October 14, 2024
IMPORTANT: Please read these Terms of Service (this “Agreement”) before clicking the “accept” button, and/or using the Burkonda, Inc. d/b/a Plan Forward (“Plan Forward”) software-as-a-service application that is provided in connection with this Agreement. By clicking the “Accept” button, and/or using the Platform (as defined below) in any way, you and the entity that you represent (“Customer”) is unconditionally consenting to be bound by and is becoming a party to this Agreement and you represent and warrant that you have the authority to bind such entity to these terms. If Customer does not unconditionally agree to all of the terms of this Agreement, use of the Platform is strictly prohibited.
Please note that Plan Forward may modify or amend this Agreement at any time. When Plan Forward modifies or amends this Agreement it will update the last updated date above, and Plan Forward may send an email to the last email address provided by Customer. Plan Forward may require Customer to provide consent to the updated Agreement in a specified manner before any further use of the Platform is permitted. If Customer does not agree to any change(s) after receiving a notice of such change(s), Customer must stop using the Platform. Otherwise, Customer’s continued use of the Platform constitutes its acceptance of such change(s). Please regularly check this Agreement.
The Platform is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Platform.
Please also refer to Plan Forward’s Privacy Policy, available at https://www.k12planforward.com/privacy-policy, for information on Plan Forward’s policies with respect to the storage, management, processing and handling of personally identifiable information.
Customer hereby agrees to the terms of this Agreement, and acknowledges and agrees that Customer’s use of the Platform, the Documentation (as defined below), and all related services, support and training are governed by the terms and conditions stated herein. Customer agrees that this Agreement, together with any sales order, purchase order or other ordering document under which any Platform may be supplied or provided by Plan Forward (the “Order”), is the complete and exclusive statement of agreement between Plan Forward and Customer and that this Agreement supersedes any oral or written proposal, agreement or other communication relating to the subject matter of this Agreement. Customer assumes full responsibility for the use of the Platform and agrees to use the Platform legally and responsibly.
SERVICES.
Platform Access and Support. Subject to the terms and conditions of this Agreement, Plan Forward grants Customer a limited, non-exclusive, non-transferable (except as permitted under Section 10.1), non-sublicensable license (a) during the Term (as defined in Section 6), to access and use the Platform by Customer’s authorized users (each, a “User”) subject to any license terms (e.g., with respect to (i) the authorized number of Users, (ii) number of reports or Output provided, (iii) types of Output, (iv) Template packages, or (v) other license types, collectively, “License Terms”) stated in the applicable Order, and (b) during the Term and thereafter (as provided in Section 1.3 below), to use the Output made available to Customer through the Platform, in each case for Customer’s internal purposes and in accordance with the limitations (if any) set forth in the applicable Order. For purposes of the Agreement, the term “Platform” shall mean Plan Forward’s proprietary software-as-a-service application identified in an Order (together with all Templates and materials contained therein or provided thereby) that allows Users to access certain features and functionality through a web interface found on Plan Forward’s website; and the term “Output” means the reports, data, and insights generated by Plan Forward that has been modified, aggregated, compiled and/or analyzed by the Platform and made available to Customer by Plan Forward through the Platform. Subject to the terms and conditions of this Agreement, Plan Forward will exercise commercially reasonable efforts to (x) provide support for the use of the Platform to Customer, and (y) keep the Platform operational and available to Customer, in each case in accordance with its standard policies and procedures. To the extent that a conflict arises between the terms and conditions of an Order and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order expressly states that it supersedes specific language in the Agreement.
Survey and Related Templates - License. Subject to the terms and conditions of this Agreement, to the extent Customer is provided templates, documentation, materials or software to use or run within Customer’s computing environment (collectively, “Templates”), Plan Forward grants Customer a limited, revocable, non-exclusive, non-transferable (except as permitted in Section 10.1), non-sublicensable license to internally use the Templates during the Term solely in connection with Customer’s access to and use of the Platform and in accordance with the applicable documentation and instructions made available to Customer by Plan Forward.
Outputs – License. Subject to the terms and conditions of this Agreement, Plan Forward grants Customer a perpetual, revocable, non-exclusive, non-transferable (except as permitted in Section 10.1), non-sublicensable license to use, make use of, publish, and make available to Customer’s end users and third parties, the Outputs provided that Customer must clearly and conspicuously attribute the source of all such Output to Plan Forward by including a “powered by Plan Forward” branding with such content or a similar designation as mutually agreed upon by the parties in writing.
Professional Services. Where the parties have agreed to Plan Forward’s provision of professional services, the details of such Professional Services will be set out in an Order (the “Professional Services”). The Order for such Professional Services will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services.
Certain Restrictions on Use of Platform. Customer shall (a) be responsible for its Users’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Output, and notify Plan Forward promptly of any such unauthorized access or use, (c) use the Platform and Output only in accordance with the documentation made available by Plan Forward relating thereto (the “Documentation”) and with applicable laws and government regulations, and (d) use the Platform and Output only in accordance with and not in excess of the applicable License Terms. Additionally, Customer shall not (i) make the Platform available to anyone other than Users, (ii) sell, resell, rent or lease the Platform or Output, (iii) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Platform to store or transmit viruses or malicious code, (v) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Platform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, maintenance, integrity or performance of the Platform or Output, (vi) attempt to gain unauthorized access to the Platform or any related systems, software or networks (vii) or de-compile, decrypt, reverse engineer, disassemble, or otherwise reduce the Platform to human-readable form or attempt to access the source code of the Platform, (viii) systematically retrieve data or other content from the Platform to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us, (ix) engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools, (x) except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Platform, or using or launching any unauthorized script or other software, (xi) delete the copyright or other proprietary rights notice from any Plan Forward content or any Output, (xii) attempt to impersonate another user or person or use the username of another user, (xiii) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”), or (xiv) use or view the Platform or Output to create a product or service that is competitive with the Platform or Output (the preceding (i) – (xiv) collectively, the “Restrictions”). Plan Forward shall have the right (but not the obligation) to monitor Customer’s and Users’ use of the Platform and Output to confirm Customer’s Users’ compliance with the terms of this Agreement, it being understood that such monitoring shall not require any additional information or efforts by Customer and shall not interfere with Customer’s use of the Platform.
Modification. Plan Forward reserves the right, at any time, to modify, suspend, or discontinue the Platform (in whole or in part) with or without notice to Customer, provided that such modification, suspension, or discontinuance does not materially adversely impact the overall Platform provided by Plan Forward to Customer.
Customer Content; Responsibility for Data and Security. To the extent Customer provides Plan Forward content, whether or not provided directly through the Platform (“Content”), Plan Forward may use the Content solely to provide the Platform and to fulfill its obligations under this Agreement. Notwithstanding the foregoing, Plan Forward shall have a perpetual, irrevocable, license to use anonymized usage statistics with respect to Users’ use of the Platform for any lawful purposes and use Content in an aggregated and de-identified basis with the data of other Plan Forward customers to develop, improve or provide its products or services. Customer and its Users will have access to the data that Customer provides directly through the Platform and will be responsible for all changes to and/or deletions of Content and the security of all passwords and other access protocols required in order for Customer to access the Platform. Customer will have the ability to export out of the Platform Content provided by Customer directly through the Platform and is encouraged to make its own back-ups of the Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Content. Customer acknowledges that Customer’s cooperation, provision of complete and accurate Content, and performance of any of its obligations under this Agreement or specified in an Order are essential to provision of the Platform, and that Plan Forward will not be liable for any deficiency in provision of the Platform if such deficiency results from Customer’s failure to provide the foregoing.
Personally Identifiable Information. Customer agrees not to provide Plan Forward with, or otherwise submit or upload to the Platform, any personally identifiable information other than as needed to establish and manage Customer’s account or authorized User accounts within the Platform. In particular, Customer will ensure that Content regarding any student or individual is free of any personally identifiable information and provided to Plan Forward only in de-identified form. It is expressly understood and agreed that (i) Customer shall review all Content prior to submission or uploading to the Platform to ensure it is free from any personally identifiable information, (ii) in the event Plan Forward becomes aware of any personally identifiable information having been submitted or provided to Plan Forward, or otherwise uploaded to the Platform, Plan Forward will have the right to delete such Content, and (iii) in the event Plan Forward becomes aware of any information that may be subject to mandatory reporting requirements, Plan Forward may report that information to Customer.
Platform Management. Plan Forward reserves the right, but not the obligation, to: (1) monitor the Platform for violations of this Agreement; (2) take appropriate legal action against anyone who, in Plan Forward’s sole discretion, violates the law or this Agreement, including without limitation, reporting such user to law enforcement authorities; (3) in Plan Forward’s sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any Content or any portion thereof; (4) in Plan Forward’s sole discretion and without limitation, notice, or liability, to remove from the Platform or otherwise disable all files and content that are excessive in size or are in any way burdensome to Plan Forward’s systems; and (5) otherwise manage the Platform in a manner designed to protect Plan Forward’s rights and property and to facilitate the proper functioning of the Platform.
INTELLECTUAL PROPERTY; FEEDBACK. Plan Forward owns all right, title, and interest in and to Platform, Documentation, and Output, including any and all improvements, enhancements, ideas, concepts, methods, processes, inventions, software, trade secrets, know-how or product modifications related to or involving the Platform, Documentation, and Output that may be developed or created under or in connection with this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein. Additionally, Customer owns all Content. No rights to the Content are granted to Plan Forward hereunder other than as expressly set forth herein. Notwithstanding anything to the contrary, Plan Forward shall own any feedback and suggestions (collectively, “Feedback”) that may be made by Customer to Plan Forward with respect to the Platform, Documentation, Output or Professional Services, whether or not Plan Forward incorporates such Feedback into the Platform, Documentation, Output or its other products or services. Without limiting the foregoing, Customer shall provide Plan Forward with any specific Feedback set forth in an Order (if any).
FEES. Customer shall pay Plan Forward the fees set forth in the applicable Order (“Fees”). Unless otherwise set forth in the Order, (a) all Fees are due 30 days from receipt of invoice, (b) Fees are quoted and payable in United States dollars, and (c) payment obligations are non-cancelable and all Fees are nonrefundable in all respects except as otherwise provided for in this Agreement. The Fees exclude, and Customer will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Platform or Professional Services (excluding taxes based solely on Plan Forward’s income). Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. In the event Plan Forward initiates or pursues any action to collect unpaid Fees due hereunder, Customer will reimburse Plan Forward for all costs of collection including court costs, attorney’s fees, and any amounts paid or retained by any collections firm or agency. If any Fees not subject to a good faith dispute are 10 days or more overdue, Plan Forward may, without limiting its other rights and remedies, suspend access to the Platform and/or Professional Services until all amounts owing are paid in full.
REPRESENTATIONS AND WARRANTIES. Plan Forward represents and warrants to Customer during the Term that the Platform will substantially conform to the Documentation. Plan Forward’s sole liability and Customer’s sole remedy in the event of a breach of the foregoing warranty is the provision of support in accordance with Section 1.1. Plan Forward represents and warrants to Customer that it will provide the Professional Services (if any) in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Plan Forward in writing of the breach within thirty (30) days following performance of the defective Professional Services, specifying the breach in reasonable detail, Plan Forward will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Professional Services which gave rise to the breach or, at Plan Forward’s option, refund the fees paid by Customer for the Professional Services which gave rise to the breach. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING WARRANTY DOES NOT APPLY, AND PLAN FORWARD STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY DATA. Each party represents and warrants that it will comply with all applicable laws in its respective performance under this Agreement and that it has full right, power, and authority to enter into this Agreement and to bind itself to the terms and conditions herein.
WARRANTY DISCLAIMER.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE PLATFORM, DOCUMENTATION, OUTPUT, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”, AND PLAN FORWARD EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, (I) PLAN FORWARD SPECIFICALLY MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING THE ACCURACY, QUALITY, TIMELINESS OR TRUTHFULNESS OF THE OUTPUT AND ANY DATA INCLUDED IN OR USED TO GENERATE THE OUTPUT, OR THAT ANY OUTPUT WILL MEET CUSTOMER’S OR ITS USER’S REQUIREMENTS; (II) PLAN FORWARD AND ITS LICENSORS DO NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; AND (III) PLAN FORWARD DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR COVENANT AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR OUTPUT.
CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE OF THE OUTPUT, AND ASSUMES ALL RISKS ASSOCIATED THEREWITH. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING ANY OUTPUT PRIOR TO ITS USE AND EXERCISING ITS OWN JUDGEMENT AS TO ITS SUITABILITY FOR CUSTOMER’S USE CASE.
TERM AND TERMINATION. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order, the term of an Order will begin on the effective date of the Order and continue for one (1) year thereafter (the “Initial Order Term”) and thereafter will automatically renew for successive one-year periods (each, a “Order Renewal Term” and together with the Initial Order Term, the “Order Term”), unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the end of the then current Order Term. Customer agrees that Plan Forward may modify the fees for each Order Renewal Term by providing Customer with written notice of such modification at least 45 days prior to the expiration of the Initial Order Term or the then-current Order Renewal Term, as applicable. Either party may terminate this Agreement if the other party breaches any material provision of the Agreement and does not cure such breach within 30 days following written notice to the breaching party. Upon termination of this Agreement: (a) Customer shall promptly pay Plan Forward for all Fees accrued prior to termination in accordance with the payment terms set forth herein, (b) Customer must immediately cease to access the Platform, and (c) each party shall, within 30 days, return or destroy all of the other party’s Confidential Information then in its possession. Sections 1.4, 1.6, 2, 3 and 5 through 10 will survive the termination of this Agreement.
CONFIDENTIALITY. From time to time during the Term, either party (as the “Discloser”) may disclose or make available to the other party (as the “Recipient”) information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, that is marked confidential or proprietary or should otherwise be understood to be confidential in light of the nature of the information and circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence by the Recipient: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Recipient or any of its employees, contractors or agents; (b) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Recipient or its employees, contractors or agents before being disclosed by or on behalf of the Discloser; or (d) was or is independently developed by the Recipient without reference to or use, in whole or in part, of any of the Discloser’s Confidential Information. The Recipient shall: (i) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Discloser’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Recipient’s employees, contractors and agents who need to know the Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Recipient shall be responsible for any breach of this Section caused by any of its employees, contractors or agents. At any time during or after the Term, at the Discloser’s written request, the Recipient shall promptly return to the Discloser all copies, whether in written, electronic or other form or media, of the Discloser’s Confidential Information, or, at the Recipient’s election, destroy all such copies and certify in writing to the Discloser that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Discloser may seek equitable relief (including injunctive relief) against the Recipient to prevent the breach or threatened breach of this Section and to secure its enforcement. In the event the Recipient is required to disclose the Discloser’s Confidential Information under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, then the Recipient may disclose such Confidential Information, so long as the Recipient gives reasonable advance notice to the Discloser in advance of such disclosure, if not prohibited by applicable law, seeks confidential treatment of such information from the entity to which the disclosure is made, and discloses only that information which is legally required to be disclosed.
INDEMNIFICATION.
Plan Forward Indemnification. Plan Forward shall indemnify, defend, and hold harmless Customer from any third-party suit (“Claim”) against Customer to the extent that the action is based upon (a) an allegation that the Platform, when used by Customer as permitted hereunder, infringe any U.S. patent, copyright, trademark or trade secret, or (b) Plan Forward’s alleged gross negligence or willful misconduct.
Customer Indemnification. Customer shall indemnify, defend, and hold harmless Plan Forward from any Claim against Plan Forward to the extent the action is based upon (a) Customer’s use of the Platform, API, Output or Professional Services in violation of this Agreement, (b) an allegation that the Content infringes any U.S. patent, copyright, trademark or trade secret, or (c) Customer’s alleged gross negligence or willful misconduct.
Indemnification Procedure. The indemnification obligations provided in this Section 8 are conditioned on the indemnified party (a) providing prompt written notice of the Claim to the indemnifying party, (b) providing the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle or defend any Claim that attributes culpability to the indemnified party without the indemnified party’s prior written consent), and (c) providing to the indemnifying party all reasonable assistance, at the indemnifying party’s expense.
LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER’S BREACH OF THE RESTRICTIONS IN SECTION 1.4: (A) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW; AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER ANY ORDER.
GENERAL PROVISIONS.
Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement to an Affiliate, or in connection with the merger, change-in-control or sale of all or substantially all of its assets. Any attempted assignment or delegation in violation of this Section will be null, void and of no effect. For purposes of this Section 10.1, “Affiliate” shall mean an entity controlled by, controlling, or under common control with a party.
Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally; delivered by reputable overnight courier; mailed by first-class, registered or certified U.S. mail, postage prepaid; or by email to the respective addresses of the parties set forth in the applicable Order.
Publicity. Plan Forward may use Customer’s name and logo in its marketing materials and on its website, and disclose that Customer is a Customer of Plan Forward. Any other uses of Customer’s name or logo require Customer’s prior written consent in each instance.
U.S. Government Rights. Plan Forward’s Platform and services are “commercial items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. If the Platform or services are acquired by or on behalf of any agency not within the Department of Defense (“DOD”), the Platform and services are subject to the terms of this Agreement in accordance with FAR 12.212 (for computer software) and FAR 12.211 (for technical data). If the Platform or services are acquired by or on behalf of any agency within the Department of Defense, the Platform and services are subject to the terms of these Terms of Use in accordance with Defense Federal Acquisition Regulation (“DFARS”) 227.7202 3. In addition, DFARS 252.227 7015 applies to technical data acquired by the DOD. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data under this Agreement.
Electronic Communications, Transactions, and Signatures. Visiting the Platform, sending Plan Forward emails, and completing online forms constitute electronic communications. Customer and each User consents to receive electronic communications, and Customer and each User agrees that all agreements, notices, disclosures, and other communications Plan Forward provides electronically, via email and on the Platform, satisfy any legal requirement that such communication be in writing. CUSTOMER AND EACH USER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY PLAN FORWARD OR VIA THE PLATFORM. Customer and each User hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means
Miscellaneous. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond such party’s reasonable control. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be 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. This Agreement is governed by and construed under the laws of the State of Delaware, without regard to its conflict of laws principles. Any claim, suit, controversy, or cause of action arising under or relating to this Agreement shall be brought in the state or federal courts located in New Castle County, Delaware, and the parties agree to the exclusive personal jurisdiction of such courts. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY. Except for modifications or amendments to this Agreement that Plan Forward may implement in the matter described in the opening section of this Agreement, any waivers hereunder or amendments to this Agreement shall be effective only if made in writing and signed by a representative of each party authorized to bind such party. This Agreement is 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. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary or employment relationship between the parties. For purposes of this Agreement the word “including” and correlative terms means inclusion without limitation.
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