Customer End User License Agreement

Last updated: March 22, 2022

This Customer End User License Agreement (the “Agreement”) is a legal, binding agreement between you, as the customer and licensee (“Customer”) and SupplyPike, Inc., a Delaware corporation with an office at 3739 N. Steele Blvd., Suite 300, Fayetteville, AR 72703, as the licensor (“SupplyPike”).

WHEREAS, SupplyPike licenses certain applications (collectively, the “Applications”) and provides related services (the “Services”) subject to the terms and conditions of this Agreement, its Privacy Policy, its Term of Use and its Software as a Service Agreement (collectively, the “SupplyPike Policies and Agreements”); and

WHEREAS, Customer desires to license certain Applications from SupplyPike and receive related Services from SupplyPike, and SupplyPike desires to license to Customer certain Applications and provide related Services, in accordance with and subject to the terms and conditions of this Agreement and the SupplyPike Policies and Agreements. The SupplyPike Policies and Agreements are incorporated herein by reference and may be found here: Terms of Use Agreement and Privacy Policy

NOW THEREFORE, in consideration of the mutual promises and agreements made herein and intending to be legally bound, the parties agree as follows:
  1. ACCEPTANCE AND ACKNOWLEDGMENT. Customer and SupplyPike accept, acknowledge and agree that they are each bound by the terms and conditions of this Agreement and the SupplyPike Policies and Agreements.
  2. APPLICATIONS AND THE PLATFORM. Customer understands and agrees that Customer will be required to access the Applications made available to Customer via the SupplyPike Software as a Service platform (the “Platform”), and the Platform is accessed via app.supplypike.com. SupplyPike grants Customer a designated number of user licenses on a limited, non-exclusive, revocable and non-transferable basis to access and make use of the Applications and Platform solely for Customer’s internal business purposes for a limited period of time. Customer shall not, and shall not permit any third party to, copy or otherwise reproduce the Applications and/or Platform or modify, translate, reverse engineer, reverse compile, decrypt or disassemble the Applications and/or Platform; rent, lease, license, sublicense, distribute, host, disclose, outsource, transfer or sell the Applications and/or Platform; create derivative works of the Applications and/or Platform; or use the Applications and/or Platform to provide any service bureau activity for any third party. Customer obtains no rights in the Applications and/or Platform except those given in this limited license. The Applications and/or Platform, any related documentation and all intellectual property rights therein are owned by SupplyPike, its affiliates and/or its suppliers (as applicable). The Applications and the Platform are licensed, not sold. Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, protect the Applications and the Platform. Customer will not remove, alter or destroy any copyright, proprietary or confidential notices placed on the Applications and/or Platform or any related documentation. Customer agrees that aspects of the Applications and Platform, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted or patented material of SupplyPike, its affiliates and/or its suppliers (as applicable). Customer agrees not to disclose, provide, or otherwise make available such trade secrets or material in any form to any third party without the prior written consent of SupplyPike. Customer agrees to implement reasonable security measures to protect such trade secrets, material and other proprietary rights.

    Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback, or other information regarding the Services, Applications and/or the Platform ("Submissions") provided by Customer and/or its employees, personnel and agents to SupplyPike are non-confidential and shall become SupplyPike’s sole property. SupplyPike shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to Customer and/or its employees, personnel or agents. Customer hereby waives all moral rights to any such Submissions, and Customer hereby warrants that any such Submissions are original with Customer or that Customer has the right to submit such Submissions. Customer agrees there shall be no recourse against SupplyPike for any alleged or actual infringement or misappropriation of any proprietary right in any Submissions.

    The Applications and Platform may display, include or make available third-party content (including data, information, applications and other products services) or provide links to third-party websites or services (“Third-Party Services”). Customer acknowledges and agrees that SupplyPike shall not be responsible for any Third-Party Services, including the accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. SupplyPike does not assume and shall not have any liability or responsibility to Customer or any other person or entity for any Third-Party Services. Third-Party Services and links thereto are provided solely as a convenience to Customer, and Customer agrees and acknowledges that Customer accesses and uses them entirely at Customer’s own risk and subject to such third parties’ terms and conditions.
  3. CUSTOMER OBLIGATIONS. Customer’s use of the Applications and the Platform (including all reports and other materials generated by the Applications and the Platform) shall comply with all applicable laws, rules, statutes and regulations, the terms of this Agreement and the SupplyPike Policies and Agreements, as may be modified from time to time by SupplyPike. Customer shall be responsible for protecting the confidentiality of Customer’s and each User’s (as defined below) password and user-name to access the Applications and Platform (the “Portal Passwords”), and only authorized employees of Customer may access the Applications and Platform. Furthermore, only the designated number of Users for which Customer has purchased User licenses may access the Applications and Platform. As used in this Agreement and its attached exhibits, a “User” is a Customer employee, representative, agent, or other individual accessing an Application and/or the Platform pursuant to or in connection with Customer’s rights under this Agreement. As between the parties, Customer is solely responsible for (a) all use (whether or not authorized) of the Applications and/or Platform and of Customer’s and the Users’ Portal Passwords provided to or created by Customer or the Users hereunder, which use shall be deemed Customer’s use for purposes of this Agreement; (b) all content that is stored or transmitted by Customer, its employees, personnel, agents and Users; and (c) ensuring that its employees, personnel, agents and Users use the Applications and Platform in accordance with all applicable laws, rules, statutes and regulations, this Agreement and the SupplyPike Policies and Agreements.

    Customer represents and warrants that each User shall read and agree to comply with the terms and conditions of this Agreement and the SupplyPike Policies and Agreements before accessing or using the Applications and/or Platform, and Customer acknowledges and agrees that it shall be responsible for all acts or omissions of Customer, its employees, personnel, agents and its Users in connection with matters which relate to this Agreement, the SupplyPike Policies and Agreements, the Applications and Platform. Customer, its employees, personnel, agents and its Users shall not upload, post, transmit or otherwise make available on or via the Applications and/or Platform any material that violates, misappropriates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, obstructive, harassing, libelous, invasive of privacy or publicity rights, that in the circumstances would be obscene or indecent, that constitutes hate speech, that is otherwise offensive or objectionable, contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or expropriate the Applications, the Platform, any system, data or personal information or that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation or intellectual property right. SupplyPike may remove, or demand the removal of, content that in its judgment violates these standards. Customer agrees to conform its equipment and software to SupplyPike’s then-current network specifications and system requirements for the Applications and the Platform. Customer agrees not to resell or make any use of the Applications and/or Platform other than for Customer’s internal business purposes.
  4. TERM. The Agreement shall be in effect until the expiration or termination of the SupplyPike Software as a Service Agreement.
  5. PAYMENT. Customer agrees to pay SupplyPike the fees (collectively the “Fees”) set forth in each SupplyPike Order Form to the SupplyPike Software as a Service Agreement. Fees shall be billed on Customer’s credit or debit card and/or SupplyPike shall provide an invoice to Customer, and the Fees shall be nonrefundable. Customer shall be responsible for all use, sales and other taxes applicable to the Services, Applications and Platform), except for taxes payable on SupplyPike’s net income. SupplyPike shall have the right to increase Fees at any time. SupplyPike may charge a late fee for all overdue amounts. The late fee will be the lesser of 1½% or the highest rate chargeable by law. In addition to the foregoing, and all other available remedies at law or in equity, SupplyPike may discontinue Customer’s access to the Applications and/or Platform in whole or in part, until such overdue amounts, together with interest, are paid. SupplyPike may require a security deposit, letter of credit, advance payment or other reasonable assurances of payment from Customer for licenses and/or Services. In the event that Customer fails to pay an invoice or Customer’s credit or debit card fails to authorize at the time SupplyPike charges Customer for the applicable Fees, and Customer fails to make payment or provide a valid credit or debit card number or other form of payment by the date established by SupplyPike, all of the information stored in Customer’s data base may be deleted and become irretrievable, and SupplyPike shall have no liability for such deletion. If payment is not received by SupplyPike from Customer’s credit or debit card issuer or its agents, Customer agrees to pay all amounts due upon demand by SupplyPike.
  6. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) SupplyPike’s Proprietary Rights. All materials, including, but not limited to, any software, data, documentation or information developed or provided by SupplyPike, any identifiers or passwords used to access the Applications and/or Platform or otherwise provided by SupplyPike, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by SupplyPike to provide the Applications and/or Platform (collectively “SupplyPike Materials”) shall remain the sole and exclusive property of SupplyPike, its affiliates and/or its suppliers (as applicable). Customer shall acquire no interest in the SupplyPike Materials by virtue of the payments provided for herein. (b) Customer Content License. Customer hereby grants to SupplyPike a nonexclusive, worldwide, royalty-free license for the term of the Agreement to modify, publish, reproduce, distribute, perform, and otherwise use any content and materials provided by Customer and its Users hereunder solely as necessary to provide the Services, Applications and/or Platform as contemplated herein. (c) Confidentiality. Customer agrees to maintain in confidence, and not to disclose to third parties or use, except for such use as is expressly permitted herein, the SupplyPike Materials and any other information and materials provided by SupplyPike in connection with this Agreement that are identified or marked as confidential or are otherwise reasonably understood to be confidential. SupplyPike shall use reasonable efforts to maintain Customer’s information transmitted via the Services in confidence; however, Customer understands and agrees that such information is transmitted over the Internet and that SupplyPike cannot guarantee the security of information transmitted over the Internet even though such information may be encrypted.
  7. SUPPORT. SupplyPike shall provide a telephone number and email address for inquiries and remote problem support for disruption of the Applications and the Platform. All such Customer support shall be provided to Customer’s help desk personnel and employees.  In no event shall SupplyPike be responsible for providing such support: (a) for any network, equipment or software not provided and installed by SupplyPike under this Agreement; (b) for issues or problems beyond its direct control; or (c) directly to any person other than Customer help desk personnel and employees. SupplyPike shall use commercially reasonable efforts to make such second level support available from 8am CT to 5pm CT, each day (excluding Saturdays, Sundays and holidays).
  8. INTERNATIONAL TRADE COMPLIANCE. The Applications, Platform and any related technical data are subject to the customs and export control laws and regulations of the United States (“U.S.”) and may also be subject to the customs and export laws and regulations of the country in which the download or access is contemplated. Further, under U.S. law, the Applications, Platform and any related technical data may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. Customer acknowledges that it is not a citizen, national, or resident of, and is not under the control of the government of any other country on the U.S. State Department’s list of state sponsors of terror, and that Customer will not access or otherwise export or re-export the Applications, Platform and any related technical data directly or indirectly to the above mentioned countries nor to citizens, nationals, or residents of those countries. Customer will comply with all applicable export, re-export and foreign policy controls and restrictions imposed by the United States and will take the necessary actions and precautions to ensure that it complies with all such laws or regulations.
  9. MONITORING. SupplyPike shall have the right, but not the obligation, to monitor Customer's use of the Applications and Platform to ensure Customer's compliance with this Agreement. In the event that SupplyPike's monitoring reveals that Customer's usage of the Applications and/or Platform exceeds Customer's rights hereunder, Customer shall pay SupplyPike an amount equal to one and a half times the Fees that would have been due for such excessive usage as liquidated damages and not as a penalty. In addition, Customer shall either discontinue any excess usage or thereafter continue to pay the applicable Service Charges for such additional usage.

    During the term of this Agreement and for two (2) years after termination, Customer grants SupplyPike (and its representatives) the right, which SupplyPike will exercise at its own expense and no more than once per calendar year, to enter Customer’s premises during business hours (and upon not less than ten (10) business days’ notice) for the sole purpose of examining Customer’s records, infrastructure and any other information relating to Customer’s use of the Applications and/or Platform. If this examination reveals that Customer has improperly used or failed to make payments as required, such conduct shall be considered a material breach of this Agreement and SupplyPike may choose to either terminate this Agreement and/or invoice Customer for such unauthorized use based upon SupplyPike’s standard Fees in effect at the time the examination is completed. If the underpaid Fees exceed five percent (5%) of the Fees actually paid, then Customer shall also pay SupplyPike’s reasonable costs of conducting the examination.
  10. MODIFICATIONS. SupplyPike shall have the right, but not the obligation to, (a) upgrade, modify and enhance the Applications and Platform through “downloads” from the SupplyPike Website or otherwise; (b) change or discontinue any aspect of the Applications and Platform, including but not limited to minimum system requirements; and (c) take any action that SupplyPike deems appropriate to protect the Applications, Platform and its facilities. SupplyPike also shall have the right to add to, modify or delete any provision of the SupplyPike Policies and Agreements. SupplyPike will notify Customer of any material adverse change in the SupplyPike Policies and Agreements by posting notice of such change on the SupplyPike Website or by email. Customer’s continued use of the Applications and/or Platform after such notice shall constitute Customer’s acceptance of such change. If a change or discontinuation of any aspect of the Applications and/or Platform has a material adverse impact on Customer’s ability to access and make use of the Applications and/or Platform, Customer may terminate its license and account without termination liability.
  11. TERMINATION. Either party may terminate this Agreement upon thirty (30) days written notice of the other party’s material breach, provided that such material breach is not cured within such thirty (30) day period. In addition, in the event that Customer or any User fails to comply with the applicable laws or regulations, the terms of this Agreement or the SupplyPike Policies and Agreements, SupplyPike may suspend or discontinue Customer’s Service in whole or in part without advance notice. In the event of a suspension, SUPPLYPIKE may require an additional Fee to restart the suspended Service and/or access to the Applications and/or Platform. Upon the termination or expiration of this Agreement, (a) SupplyPike’s obligations hereunder shall cease; (b) Customer promptly shall pay all amounts due and owing to SupplyPike; and (c) Customer promptly shall cease all use of any Application and the Platform. The foregoing shall be in addition to any other rights and remedies that SupplyPike may have under this Agreement, the SupplyPike Policies and Agreements and at law or in equity.
  12. INDEMNIFICATION. Customer agrees to defend, indemnify and hold harmless SupplyPike and its affiliates, subsidiaries, officers, directors, agents, employees, partners, licensors, service providers and suppliers and their respective officers, directors, employees and agents, from and against all claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of or relating to: use of the Services, Applications, Platform and/or Portal by Customer and its employees, personnel, agents and Users, including but not limited to a breach of Section 3 herein; or any content or other materials supplied or transmitted by Customer or its employees, personnel, agents or Users, including, but not limited to, any content which infringes, misappropriates or violates or allegedly infringes, misappropriates or violates the proprietary rights of a third party.
  13. DISCLAIMER OF WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, APPLICATIONS AND PLATFORM ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY, DATA ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR QUIET ENJOYMENT, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. CUSTOMER AGREES THAT ALL USE OF THE SERVICES, APPLICATIONS AND PLATFORM ARE AT CUSTOMER’S SOLE RISK. SUPPLYPIKE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, APPLICATIONS AND PLAFORM WILL MEET CUSTOMER’S REQUIREMENTS, WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. IN ADDITION, CUSTOMER UNDERSTANDS AND AGREES THAT TRANSMISSIONS OVER THE INTERNET MAY NOT BE SECURE. CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA UPLOADED, DOWNLOADED OR OTHERWISE USEED OR OBTAINED THROUGH THE USE OF THE SERVICES, APPLICATIONS AND PLATFORM ARE DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S BUSINESS, COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE UPLOADING, DOWNLOAD OR OTHER TRANSMISSION OF SUCH MATERIALS AND/OR DATA.

    IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT SUPPLYPIKE’S AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THIS AGREEMENT, AND SUPPLYPIKE DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND THIRD PARTY SERVICE PROVIDERS UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, QUIET ENJOYMENT OR NON-INFRINGEMENT.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER AND/OR USERS FROM SUPPLYPIKE OR THROUGH THE SERVICES, APPLICATIONS AND/OR THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  14. LIMITATION OF LIABILITY. CUSTOMER UNDERSTANDS, ACCEPTS, ACKOWLEDGES AND AGREES THAT SUPPLYPIKE, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S USERS, AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS OR THIRD PARTY SERVICE PROVIDERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES, APPLICATIONS AND/OR PLATFORM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, APPLICATIONS, SOFTWARE OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES, APPLICATIONS, PLATFORM AND/OR PORTAL; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY RELATING TO THE SERVICES, APPLICATIONS, PLATFORM OR PORTAL; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES, APPLICATIONS, PLATFORM AND/OR PORTAL.

    CUSTOMER EXPRESSLY UNDERSTANDS, ACCEPTS, ACKOWLEDGES AND AGREES THAT SUPPLYPIKE, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S USERS, AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS OR THIRD PARTY SERVICE PROVIDERS FOR DIRECT DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN AN AMOUNT GREATER THAN THE AMOUNT OF FEES PAID BY CUSTOMER TO SUPPLYPIKE FOR THE SERVICES, APPLICATIONS AND PLATFORM IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

    IN NO EVENT SHALL SUPPLYPIKE’S AFFILIATES, THIRD PARTY SERVICE PROVIDERS OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER HEREUNDER.

    CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES, APPLICATIONS AND/OR THE PLATFORM MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
  15. NOTIFICATIONS. Customer’s privacy interests, including Customer’s ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the Electronic Communications Privacy Act. Personally identifiable information that may be collected, used or disclosed in accordance with applicable laws, is described in the SupplyPike Privacy Policy, which is incorporated herein by reference. Customer acknowledges its review and acceptance of the SupplyPike Privacy Policy. In addition to the foregoing, Customer hereby acknowledges and agrees that SupplyPike may disclose Customer’s and its employees’ and Users’ personally identifiable information as required by law or regulation or by the American Registry for Internet Numbers (“ARIN”) or any similar agency. In addition to actions and disclosures specifically authorized by law or statute or authorized elsewhere in this Agreement, SupplyPike shall have the right (except where prohibited by law notwithstanding Customer’s consent), but not the obligation, to disclose any information to protect its rights, property and/or operations, or where circumstances suggest that individual or public safety is in peril. Customer hereby consents to such actions or disclosures.
  16. FORCE MAJEURE.  SupplyPike shall have no liability to Customer or its Users hereunder due to circumstances beyond its control, including, but not limited to, acts of God, terrorism, the threat of terrorism, war, an epidemic, a pandemic, a shelter-in-place order, a quarantine, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Applications and or the Platform, in whole or in part, third party services and service providers, the Internet, or an act or failure to act of Customer or any third party using the Services, Applications and/or the Platform.
  17. ENTIRE AGREEMENT.  This Agreement (including without limitation the SupplyPike Policies and Agreements and related Order Forms) set forth the entire agreement between the parties with respect to the subject matter hereof and supersede all previous written or oral agreements or representations between the parties with respect hereto.
  18. MISCELLANEOUS.  This Agreement shall be governed and construed in accordance with the laws of the State of Arkansas, excluding its conflicts of law provisions. All actions and proceedings to enforce the obligations of the parties under this Agreement shall be initiated in an appropriate state or federal court in Washington County, Fayetteville, Arkansas to the exclusion of all other courts, and the parties consent to the jurisdiction and venue of any such court and waive any argument that venue in such forum is not convenient. Notwithstanding the preceding sentences, if Customer owes SupplyPike Fees, SupplyPike may pursue legal action against Customer in any state or federal court with proper jurisdiction, and Customer agrees to reimburse SupplyPike for all reasonable, related legal and other fees to collect any and all amounts owed to SupplyPike.

    The Applications, Platform and related documentation are “Commercial Items”, as that term is defined under 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used under 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. In accordance with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

    In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Customer may not assign this Agreement without the prior written consent of SupplyPike, and any assignment in violation of this Section shall be null and void. SupplyPike may assign its rights and obligations under this Agreement, including without limitation, in whole or in part, to any affiliated party or successor-in-interest without the prior written approval of or notice to Customer. Customer understands and agrees that, regardless of any such assignment, the rights and obligations of SupplyPike herein may accrue to, or be fulfilled by, any affiliate or successor-in-interest, as well as by SupplyPike and/or its subcontractors. The parties to this Agreement are independent contractors. Any notice under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other party. Notices shall be delivered to Customer and SupplyPike at the respective addresses as provided by one party to the other in writing. The provisions of Sections 5, 6, 12,1 3, 14, 15 and 18 shall survive the termination or expiration of this Agreement. No modification of any provision of this Agreement shall be valid unless set forth in a written instrument.