Master Services Agreement

THIS MASTER SERVICE AGREEMENT (“MSA”) is entered into and made effective as of the effective date of the first order form executed between the parties (the “Effective Date”) by and between Taloflow Inc., a Delaware Corporation located at 21255 Burbank Boulevard 1st Flr, Los Angeles, CA 91367 (“Taloflow”), and the entity or person executing an order form for the Services that expressly references this MSA (“Customer”). Taloflow and Customer shall hereinafter be respectively referred to as a “Party” and, collectively, as the “Parties.”

The MSA applies to and incorporates any Schedule or Addendum attached hereto and executed by both Parties (the “Schedule(s)” and “Addendum(s)”) made by and between the Taloflow and the Customer and set forth the terms and conditions under which Taloflow will provide the Customer with access to certain applications (the “Application(s)”) as set forth herein and user documentation that Taloflow makes generally available in hard copy or electronic form to its general customer base in conjunction with the licensing of such Applications ("Documentation"). The Applications and the Documentation will hereinafter collectively be referred to as the “Software.”

1. Overview and Purpose. The MSA outlines the specific services, deliverables, timelines, responsibilities, and pricing associated with Taloflow’s provision of its proprietary technology comparison and procurement intelligence platform to Customer.
2. Definitions
   
   1. “Enterprise Plan” refers to the collection of features described under the enterprise section of Taloflow’s pricing page at https://www.taloflow.ai/pricing and any modifications or additions thereto.
   2. “Evaluation(s)” means the structured vendor analyses set up by Taloflow’s artificial intelligence, expert systems and analysts, and further configured by Customer’s stakeholders, based on the stated objectives and business needs of Customer’s clients. For avoidance of doubt, Evaluation shall mean the analysis which has a unique identifier and appears on creation as one line in the Customer’s dashboard under the columns “My Evaluations”. For the purposes of this Agreement, Shared Evaluations shall only count as one (1) Evaluation against the creator of the Evaluation.
   3. “Product Category” or “Category” means the named grouping or taxonomy of like vendors (the “Product Category”) which is used to select vendors, features, requirements and dimensions when creating an Evaluation. 
   4. “New Category” means the creation of a Product Category for any Evaluation for which Taloflow does not have an existing Product Category for at the time of request.
   5. “Existing Category” means any Evaluation for which Taloflow already has an existing Product Category for in its catalog at the time the Evaluation is created.
   6. “Services” means the hosted web-based application delivered by Taloflow, which provides (a) vendor comparison tooling; (b) buyer enablement workflows; (c) evaluation and selection frameworks for technology; (d) relevant reports, charts, benchmarks, and change logs; and (e) team and personal dashboards and workspaces; and (f) creating and updating underlying software category datasets to meet engagement needs.
   7. “Authorized User(s)” shall mean a unique user account associated with a single individual user, through which the user may access and use the Services as permitted hereunder.
   8. “Taloflow UI” refers to the proprietary web-based user interface developed and provided by Taloflow, through which users can access, configure, and interact with the Services and other features provided by Taloflow. This includes all visual elements, design components, workflows, dashboards, and functionalities made available via the interface, excluding any third-party content or integrations.
   9. “Workspace(s)” means a dedicated workspace, as defined and implemented in the Taloflow UI, for a number of Authorized Users with the appropriate permissions to collaborate on a shared collection of Evaluations.
3. Services.
   
   1. Access. During the Term, Customer will have a non-exclusive, non-transferable, right to access and use the Services via browser login for any number of Authorized Users subject to the terms in Section 4 below.
   2. Evaluation Services. During the Term, Customer can create, without limitations, Evaluations, and can request new Product Categories provided that any Evaluation created or new Product Category requested will incur the charges set forth in Section 4.1. New Product Categories for Evaluations made on Customer’s request (by in-app, email, or web form request) shall be delivered within the delivery timeframes set forth in Section 4.1.
   3. Limitations. Customer has the right to use the Evaluations for internal use and direct client engagements only. Customer must seek Taloflow’s express permission in writing (by email) before publishing any Evaluation publicly or attributing any modifications to an Evaluation made by an Authorized User to Taloflow. After Termination, the Customer shall have the right to continue to use any previous PDF or Excel downloads for internal use.
   4. Training and Support. Taloflow will provide up to four (4) live onboarding sessions held virtually, tailored to user roles, and provide ongoing support via Slack, Microsoft Teams or email (during business hours PST).
4. License Grant and Right to Use
   
   1. License Grant. Subject to all limitations and restrictions contained herein, Taloflow grants Customer a term subscription, software as a service, nonexclusive, and nontransferable right to access and operate the object code form of Applications (and use its Documentation) as hosted by Taloflow (the “Use”) and solely to perform those functions described in the Documentation.
   2. Limitations of Use. Customer will have a limited right and license to use the Application solely for its internal business purposes, to perform the functions described in the Documentation. Subsidiaries and affiliated companies are permitted access to the Software. Unless otherwise expressly permitted herein, Customer shall not permit any third parties to access the Software.
   3. Additional Restrictions. In no event will Customer disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application’s operation and creating the original source code or any approximation thereof by, for example, studying the Application’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of this MSA. Customer may use Taloflow’s Confidential Information, as defined in Section 4, solely in connection with the Application and pursuant to the terms of this MSA.
   4. Customer License Grant. Customer grants to Taloflow a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer data as is reasonable or necessary for Taloflow to perform or provide the Application under this MSA.
   5. Third Party Software. The Services may include or interact with third-party software. If Taloflow determines that additional consents, restrictions, or terms are required in connection with the use of such third-party software, Taloflow will provide written notice to the Customer describing the required terms. The Customer shall have a reasonable period of time, not to exceed thirty (30) days from the date of notice, to comply with such terms or to terminate this Agreement without penalty.
   6. Reservation of Rights.  By execution hereof, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Taloflow materials provided to Customer. Taloflow will own all right, title, and interest in such Software and Taloflow materials, subject to any limitations associated with intellectual property rights of third parties. Taloflow reserves all rights not specifically granted herein.
5. Payment
   
   1. Fees. Customer shall pay Taloflow the fees associated with use of the Software as set forth in any order form signed by the Parties (the “Fees”). Unless otherwise agreed by the Parties in writing, all Fees shall be payable to Taloflow within fifteen (15) days from the date of the applicable invoice.
   2. Price Changes. Taloflow may change prices for the Services from time to time, in its sole discretion. Any price changes will be effective upon the commencement of Customer’s next Renewal Term (as defined below); provided, that Taloflow shall provide Customer with reasonable notice of any such fee increase prior to the expiration of the Term or any Renewal Term.
   3. Discounts and Promotional Pricing. Prices specified in any order form may include discounts or promotional pricing. These discounts or promotional pricing amounts may be temporary and may expire upon the commencement of a Renewal Term, without additional notice, or as otherwise detailed in any order form. Taloflow reserves the right to discontinue or modify any promotion, sale or special offer at its sole and reasonable discretion.
   4. Itemization. Taloflow will provide Customer with invoices with itemized costs by project code to meet the business requirements of Customer.
   5. Overdue Invoices.  In the event that payment of an invoice is overdue by more than fifteen (15) days, Taloflow may suspend performance of the Software and require full payment of all Fees prior to restarting performance.
   6. Taxes.  All Fees are exclusive of any sales, use, value added, or excise taxes or import duties. Customer shall pay, reimburse, and/or hold Taloflow harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income tax obligations on Taloflow, (collectively, “Taxes”) which are levied or imposed by reason of the performance of the Software under this MSA. In the event Customer is required by applicable law to withhold or deduct any amounts from the Fees, Customer will gross up payment to Taloflow such that Taloflow will receive the total Fees listed in the applicable invoice. Taloflow will use commercially reasonable efforts to collect Taxes, and will remit such Taxes to the appropriate governmental authority, based on the billing contact information provided by Customer to Taloflow.
6. Confidentiality
   
   1. Confidential Information.  “Confidential Information” includes all information marked pursuant to this Section and disclosed by either Party, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a Party that contains, reflects, or is derived from such information. For clarity, Aggregated Anonymous Data (as defined in Section 4.5 below) shall not be considered Confidential Information.
   2. Confidentiality of Software. All Confidential Information in tangible form will be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), will be designated as being confidential at the time of disclosure and will be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed “Taloflow Confidential Information” with or without such marking or written confirmation: (i) the Software and other related materials furnished by Taloflow; (ii) the oral and visual information relating any Evaluation; and (iii) this MSA.
   3. Exceptions. Without granting any right or license, the obligations of the Parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving Party; (ii) is independently developed by the other Party without use of the disclosing Party’s Confidential Information; (iii) is rightfully obtained from a third Party without any obligation of confidentiality; or (iv) is already known by the receiving Party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing Party. In addition, neither Party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing Party so that the disclosing Party may seek a protective order and engage in other efforts to minimize the required disclosure. The Parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
   4. Ownership of Confidential Information. Nothing in this MSA will be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to Taloflow’s Confidential Information. Neither Party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this MSA. Each Party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
   5. Use Data and Aggregated Anonymous Data. In connection with Customer’s access to and use of the Software, Taloflow may collect and use certain data submitted by Customer and its Authorized Users, as well as technical and usage information generated through such use (“Use Data”). Use Data may include both personal and non-personal information. Taloflow shall use Use Data solely as necessary to provide, maintain, and improve the Software and related services, and to fulfill its obligations under this MSA. Taloflow may also aggregate and anonymize Use Data with similar data from other customers to create de-identified, statistical, or benchmark data that does not identify Customer or any Authorized User (“Aggregated Anonymous Data”). Aggregated Anonymous Data shall not be deemed Confidential Information of Customer and may be used by Taloflow for its business purposes, including product development, analytics, and reporting, provided that such use complies with applicable law and does not compromise the confidentiality or security of Customer’s identifiable information.
   6. Non-Disclosure. Each Party agrees to keep confidential and not disclose to any third party any documents, information, or materials provided by or on behalf of the other Party in connection with the transactions contemplated herein. Each Party shall take reasonable steps to ensure that its representatives who may have access to such confidential information also maintain its confidentiality. This obligation of confidentiality shall not apply to information that (i) is or becomes publicly available other than as a result of a breach of this provision, (ii) is received from a third party not bound by a duty of confidentiality, or (iii) was already in the receiving Party’s possession without obligation of confidentiality prior to disclosure by the disclosing Party.
   7. Injunctive Relief. Each Party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other Party imminent irreparable injury and that such Party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other Party does not fulfill its obligations under this Section.
   8. Suggestions/Improvements to Software.  Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Taloflow materials provided to Customer will be owned by Taloflow, and Customer hereby agrees to assign any such rights to Taloflow. Nothing in this MSA will preclude Taloflow from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Taloflow in the performance of services hereunder.
7. Warranty
   
   1. Authority.  Each Party represents and warrants to the other Party that: (a) such Party has the full corporate right, power and authority to enter into this MSA and to perform the acts required of it hereunder; and (b) in connection with this MSA and its activities hereunder, it will comply with all applicable laws, rules and regulations.
   2. Disclaimer of Warranties. Any and all of SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION and any other technology or materials provided by TALOFLOW to the CUSTOMER are provided “as is” and without warranty of any kind. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 5 OF THIS MSA. TALOFLOW MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NEITHER TALOFLOW (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
   3. Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this MSA are voided if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Taloflow.
8. Indemnification
   
   1. Taloflow Indemnity.  Taloflow shall indemnify, defend, and hold harmless Customer, its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, (collectively, the “Losses”) arising out of any third party claim to the extent that such cause of action (i) arises out of Taloflow’s gross negligence or willful misconduct, or (ii) is based on a claim that the Application, as hosted by Taloflow to Customer, infringes a United States patent, copyright, or trade secret of a third party. Taloflow will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Taloflow. Customer may retain its own counsel at Customer’s own expense.
   2. No Liability.  Taloflow will have no liability for any claim of infringement based on: (i) Software which has been modified by parties other than Taloflow where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Software outside the permitted scope of this MSA.
   3. Remedies. Should the Software become, or in Taloflow’s opinion is likely to become, the subject of a claim of infringement, Taloflow may, at its option, (i) obtain the right for Customer to continue using the Software, (ii) replace or modify the Software so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Software. Upon such termination, Customer shall cease accessing the Software and Taloflow will refund to Customer, as Customer’s sole remedy for such license termination, the subscription fees paid by Customer for the terminated license for the past twelve (12) months. THIS SECTION 6 STATES THE ENTIRE LIABILITY OF TALOFLOW WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE APPLICATION.
   4. Customer Indemnity.  Customer shall indemnify, defend, and hold harmless Taloflow, its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees from and against any and all Losses asserted against Taloflow, its contracted providers, agents, officers and employees, arising out of any claim relating to Customer’s: (i) breach of any of its obligations set forth in Section 9 (Customer Obligations); (ii) Customer’s gross negligence or willful misconduct; (iii) actual or alleged use of the Application in violation of this MSA or applicable law by Customer; or (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Taloflow by the Customer or otherwise inputted into the Application, whether by the Customer, an Authorized User or otherwise including Customer Work Product (as defined below). “Customer Work Product” means that data and those forms developed or acquired by Customer for internal business purposes independent from Taloflow or the Application.
   5. Indemnification Condition Precedent. Each Party’s obligations under this Section are conditioned upon the indemnified Party providing the indemnifying Party with: (a) the prompt written notice of any claim by the Party seeking the Indemnity (the “Indemnitee”) to the indemnifying Party (the “Indemnitor”) of any claim for which indemnification is sought; (b) complete control of the defense and settlement of the claim by the Indemnitor; and (c) reasonable assistance and cooperation in such defense at the indemnifying Party’s expense.
   6. Settlement Conditions.  No settlement of any action against an indemnified Party shall be made without the consent of the indemnified Party and no indemnifying Party, in the defense of any such claim or action, shall, except with the consent of the indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Party of a release from all liability in respect to such claim or litigation. If the indemnified Party fails to execute a release or other settlement agreement under circumstances where all of the conditions of the preceding sentence have been met, the indemnifying Party shall have no further obligation to the indemnified Party pursuant to this MSA or otherwise.
9. Limitation of Liability
   
   1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.
   2. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
   3. Notification Notwithstanding.  THE FOREGOING LIMITATIONS APPLY TO SECTION 7.1 AND 7.2 EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
   4. Third-Party Disclaimer. TALOFLOW MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. TO THE EXTENT PRACTICAL AND APPLICABLE, TALOFLOW AGREES TO PASS THROUGH ANY WARRANTIES PROVIDED BY THIRD PARTIES TO CUSTOMER.
   5. Taloflow Evaluation Results. The Taloflow service offers product comparison reports, ratings and analysis as an information product. Taloflow does not guarantee the accuracy of information provided by its product researchers and by third parties, including but not limited to technology vendors and managed service providers. Third parties may include information about performance, special offers, incentives, or pricing. Taloflow is not responsible for and does not verify or warrant the accuracy or completeness of the information provided by vendors and the information may contain errors or omissions. Further, Taloflow does not guarantee that any information, whether text, images, or files, shared or uploaded by Customer or other contributors to a Taloflow Evaluation will be permanently available on the Software. NEITHER TALOFLOW, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS, OR LICENSORS (collectively, “Taloflow Parties”) MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO ANY ACTUAL OR PROSPECTIVE BUYER OF A VENDOR’S SERVICES, OR AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ABOUT A VENDOR. Taloflow may, but has no obligation to, correct any error or omission on the Software. Users must address all concerns, discrepancies and/or potential issues with the third party vendor prior to making a business decision.
10. Term and Termination
    
    1. Subscription Term. This MSA shall have an initial term of twelve (12) months starting from the Effective Date first written above or until termination by either Party, and will renew for subsequent twelve (12) month terms (each, a “Renewal Term”) unless otherwise terminated in accordance with this Section (collectively the “Term”).
    2. Termination by Taloflow.  This MSA and any license created hereunder may be terminated by Taloflow: (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
    3. Termination by Customer. This MSA may be terminated by Customer on thirty (30) days written notice to Taloflow if Taloflow materially breaches this Agreement and such material breach remains uncured after such thirty (30) day period, or pursuant to Section 1.5 above.
    4. Effect of Termination. Upon termination of this MSA, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
    5. Other Remedies. Termination of the MSA will not limit either Party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this MSA.
11. Customer Obligations
    
    1. Customer Compliance.  Customer agrees to comply with all applicable laws, regulations, and ordinances relating to this MSA.
    2. Application Access and Security.  The Customer shall be obliged to keep the login names and the passwords required for the use of the Application confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions. Personal access data must be changed at regular intervals. Before uploading any files or content, the Customer must check them for viruses or other harmful components using up-to-date antivirus software. Additionally, the Customer is solely responsible for entering and maintaining its own data.
    3. Violations. The Customer shall be obliged to inform its employees and contractors before the beginning of Use of the Software about the rights and obligations set forth in this MSA. The Customer will be liable for any violation of obligations by its employees, contractors or by other third parties who violate obligations within the Customer’s control. Taloflow has the right (but not the obligation) to suspend access to the Application or remove any data or content transmitted via the Application without liability (i) if Taloflow reasonably believes that the Application is being used in violation of this MSA or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Taloflow shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Application as permitted under this MSA, or (iii) as otherwise specified in this MSA. Information on Taloflow’s servers may be unavailable to Customer during a suspension of access to the Software. Taloflow will use commercially reasonable efforts to give Customer at least twelve (12) hours’ notice of a suspension unless Taloflow determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Taloflow or its customers.
12. Miscellaneous.
    
    1. Assignment.  Neither party may assign this MSA or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of the other party, provided that either party may assign this MSA in connection with a merger or sale of all or substantially all of such party’s assets upon notice to the non-assigning party. Any purported assignment of this MSA, or any license or rights in violation of this Section will be deemed void. 
    2. Reservation of Rights.  Taloflow and Customer each reserve all rights not specifically granted to the other herein.
    3. Third Parties.  Taloflow will have the right to use third parties, including, but not limited to, employees of Taloflow’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this MSA, all references to Taloflow or its employees will be deemed to include such Subcontractors. Taloflow at all times shall remain fully liable for all acts and omissions of any Subcontractor unless the Subcontractor has been added to Schedule 2 attached hereto and confirmed in writing by Customer.
    4. Compliance.  Each Party shall comply with all applicable laws, regulations, rules and governmental requirements related to the performance of this Agreement.
    5. Survival.  The provisions set forth in Sections 2, 3, 4, 5.2, 7, 8.2, 8.3, 8.4, 8.5 and 10 of this MSA will survive termination or expiration of this MSA and any applicable license hereunder.
    6. Notices.  All notices, requests, claims, demands, and other communications under this MSA shall be in writing and shall be sent by (i) electronic correspondence (email) with confirmation of receipt, and by (ii) (x) United States Postal Service first-class mail, postage prepaid, (y) overnight delivery service, or (z) personal delivery, in each case with proof of delivery, to the following addresses.
       
       • To Taloflow:
         
         • Mail: Attention: Taloflow Legal, 21255 Burbank Boulevard 1st Flr, Los Angeles, CA 91367
         • Phone: +1 (310) 388-3794
         • Email: [email protected]
       • To Customer: (as specified in the order form)
         

7. Force Majeure.  Either Party shall be excused from delays in performing or from failing to perform its obligations under this MSA to the extent the delays or failures result from causes beyond the reasonable control of the Party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
8. Entire Agreement. This MSA together with the Schedules and Addendums constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. Any signed copy of this MSA made by reliable means will be considered an original.
9. Disputes.  Customer and Taloflow agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this MSA through negotiation. Should the Parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this MSA, including, without limitation, the interpretation or breach thereof, either Party may escalate the issue to the President of the other Party and each Party’s President shall seek to resolve the issue in good faith. If the Presidents are unable to resolve the matter within thirty (30) days, either Party may seek any remedy available at law or in equity.  Notwithstanding the foregoing, this Section shall not preclude either Party from seeking temporary, provisional, or injunctive relief from any court. 
10. Severability.  In the event that a court finds any provision of this MSA invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
11. Modifications. The parties agree that this MSA cannot be altered, amended or modified, except by a writing signed by an authorized representative of each Party.
12. Waiver.  Neither Party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other Party of any of the provisions of this MSA. Further, the waiver by either Party of a particular breach of this MSA by the other Party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this MSA.
13. Independent Contractor. Taloflow is an independent contractor and nothing in this MSA will be deemed to make Taloflow an agent, employee, partner, or joint venturer of Customer. Neither Party will have authority to bind, commit, or otherwise obligate the other Party in any manner whatsoever.
14. Jurisdiction.  This MSA shall be governed and construed in accordance with the laws of the United States and the State of California, without regard to its principles of conflicts of law and any action brought hereunder shall be brought in the county of Los Angeles, California.
15. No Presumption Against Drafting Party.  Each of the Parties acknowledges that each Party has been represented by legal counsel in connection with this MSA and the transactions contemplated by this MSA. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this MSA against the drafting Party has no application and is expressly waived.
16. Legal Fees. If any Party hereto shall commence legal proceedings against the other or if the Parties enter into formal arbitration to enforce the terms hereof, or to declare rights hereunder, as the result of a breach of any covenant or condition of this MSA, the prevailing Party in any such proceeding shall be entitled to recover from the losing Party its costs of suit, including reasonable attorneys’ fees, as may be fixed by the court or arbitrator. For purposes of clarification, the prevailing Party shall mean the Party whose favor a judgment, decision, decree or final order is rendered.