Master Subscription Agreement
Last Revised: August 2022
This IgniteConnex Master Subscription Agreement ("MSA") is effective as of the effective date of an applicable fully executed subscription order form (such form an "Order Form" and such date the "Effective Date") and is by and between IgniteConnex Inc., a Texas corporation with a place of business at 5420 W Plano Parkway Plano, TX 75093 ("IgniteConnex"), and the customer set forth on the Order Form ("Customer") (each a "Party" and together the "Parties"). In the event of any inconsistency or conflict between the terms of this MSA and the terms of any Order Form, the terms of the Order Form control.
Section 1. Program Products. The "Program Products" mean the products that are ordered by Customer from IgniteConnex in an Order Form referencing this MSA. Program Products exclude any products or services provided by third parties simultaneously or in conjunction with the Program Products, even if Customer has deemed those products or services to be an integral part of the Program Products. Subject to the terms and conditions of this MSA, IgniteConnex will make the Program Products available to Customer during the Term.
Section 2. Fees and Payment.
2.1. Fees. Customer will pay the fees specified in the Order Form (the "Fees").
2.2. Payment; Taxes. IgniteConnex will invoice Customer for Fees, either within the Program Products or directly, within thirty (30) days of the Effective Date or otherwise as specified in the Order Form. Customer will pay all invoiced Fees net forty-five (45) days from the date of the invoice. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Customer, except for taxes on IgniteConnex based on IgniteConnex's income or receipts.
Section 3. Term and Termination.
3.1. Term and Renewal. This MSA commences on the Effective Date and will remain in effect through the term specified in the Order Form, and will renew as specified in the Order Form unless otherwise terminated in accordance with this Section (collectively the "Term"). Any term as specified in the Order Form will automatically renew for successive one-year periods unless Customer provides IgniteConnex with notice of termination at least thirty (30) days prior to the end of the Term.
3.2. Termination for Cause. A Party may terminate this MSA for cause (a) upon notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party's receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors in any jurisdiction, that is not dismissed within sixty (60) days of its commncement; or (c) immediately by IgniteConnex if Customer makes one of the Prohibited Uses below. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice, and any violation of Section 4.5 (Prohibited Uses), Section 5 (Confidentiality), or Section 8 (Intellectual Property Rights) below will be considered material breaches of this MSA.
3.3. Effect of Termination and Survival. Upon termination of an Order Form or this MSA (a) with respect to termination of the entire MSA, all Order Forms will concurrently terminate, (b) Customer will have no further right to use the Program Products under the terminated or cancelled Order Forms and IgniteConnex will remove Customer's access to same, (c) unless otherwise specified in writing, Customer will not be entitled to any refund of fees paid, and (d) licenses and use rights granted to Customer and to IgniteConnex will immediately terminate. The following Sections will survive termination: Section 2 (Fees and Payment), Section 5 (Confidentiality), Section 6.2 (Data Practices-Ownership), Section 8 (Intellectual Property Rights), Section 9.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 11 (Miscellaneous). Termination of this MSA will not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
Section 4. Ownership, License, and Use of the Program Products.
4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, industrial designs, works of authorship, service marks, logos, business or trade names, commercial or trade secrets, design rights, know-how, processes, formulas, documentation, drawings, concepts, ideas, object or source code, schematics, software, strategies, marketing data, test data, financial data, manuals or data in connection with the same, contracts with other companies, existing customer lists, and any other intellectual property and/or proprietary rights ("Intellectual Property Rights"). IgniteConnex will retain as its sole Intellectual Property Rights in the Program Products and all components of, or used to, provide the Program Products or created by the Program Products or by IgniteConnex in the course of providing the Program Products (the "Program Product Information"). In addition, IgniteConnex shall retain as its sole Intellectual Property Rights all revisions, enhancements, modifications, editions, improvements and versions of the Program Products. Customer will retain Intellectual Property Rights in all information it provides to IgniteConnex as part of this MSA (other than Feedback as described below), including but not limited to in the course of its use of the Program Products (the "Customer Information").
4.2. Feedback. Customer may, under this MSA, provide suggestions, enhancement requests, recommendations about the Program Products, or other feedback to IgniteConnex (the "Feedback"). Any and all Feedback shall become the sole Intellectual Property of IgniteConnex and the Customer shall, without further action, irrevocably waive any ownership right to same. IgniteConnex shall ensure that use of the Feedback shall not identify Customer. Feedback will be kept in strict confidence and not disclosed to any third party of IgniteConnex or used for IgniteConnex's own benefit or purpose other than in using such Feedback for improvements to the Program Products.
4.3. Licenses. IgniteConnex hereby grants Customer a non-exclusive, non-transferable, revocable, and non-sublicensable right to and license to access and use the Program Products as set forth in the Order Form but expressly subject to the terms and conditions of this MSA and the Order Form. Customer hereby grants IgniteConnex a limited, non-exclusive, non-transferable, non-sublicensable right and license to use the Customer Information solely to provide the Program Products to Customer.
4.4. Authorized Users. Customer may designate and provide access to the Program Products to employees, agents, or authorized contractors (each an "Authorized User"). Customer is responsible for all use and misuse of the Program Products by Authorized Users and for adherence to all terms of this MSA by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify IgniteConnex of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this MSA by Customer.
4.5. Prohibited Uses. Customer and Authorized Users will not knowingly: (a) distribute, resell, disclose, or permit access to the Program Products by any third party other than as allowed by the features and functionality of the Program Products; (b) use the Program Products in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Program Products; (d) successfully or otherwise, attempt to: reverse engineer, discover the underlying source code or structure of, or copy the Program Products; (e) provide IgniteConnex any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Program Products or otherwise use on the Program Products any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Program Products; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Program Products; (h) provide access to the Program Products, in whole or in part, to an individual associated, either directly or indirectly, with a IgniteConnex Competitor; or (i) extract information from the Program Products in furtherance of competing with IgniteConnex. A "IgniteConnex Competitor" is any entity that provides the same or similar goods and services to those provided to IgniteConnex at any time during the subject of the license granted by the Agreement, as would be determined by a commercially reasonable individual.
Section 5. Confidentiality. If the parties have a separate mutual nondisclosure agreement ("MNDA"), any language in said agreement will be made a part of and be in addition to this Agreement. As used herein, the "Confidential Information" of a Party (the "Disclosing Party") means, in addition to any language in said MNDA, all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the "Receiving Party") or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Customer Information are Confidential Information under this MSA, or confidential under the separate MNDA, as applicable. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party's prior written consent. The Receiving Party will not use the Disclosing Party's Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of IgniteConnex, to provide the Program Products. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. If any of Confidential Information falls within any of the above exceptions, the remainder of the Confidential Information shall continue to be subject to the requirements of this MSA. Notwithstanding anything contained herein to the contrary, Receiving Party acknowledges that any actual or threatened breach of this Section 5 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the Disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this MSA or Order Form or damages that may otherwise result from those breaches. Absent written consent of the Disclosing Party to the disclosure, the Disclosing Party, in the case of an alleged breach of this Section 5 (Confidentiality), has the burden of proving that the Disclosing Party’s Confidential Information is confidential or a trade secret and that the Receiving Party has violated this Section 5 (Confidentiality).
Section 7. Representations
7.1. Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
Section 8. Warranties, Disclaimers and Indemnifications
8.1. Warranties. IgniteConnex warrants that during an applicable Term (a) the IgniteConnex SOC 2 report accurately describes the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Information; (b) the Program Products will perform substantially in accordance with any applicable documentation provided to Customer and (c) IgniteConnex ensures that the Program Products do not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into Customer's system. Customer’s sole and exclusive remedy for any breach of these warranties by IgniteConnex is for IgniteConnex, at IgniteConnex's sole cost and expense, to repair or replace the affected Program Products to make them conform, or, if IgniteConnex determines that the foregoing remedy is not commercially reasonable, then either Party may terminate the Agreement. For avoidance of doubt, the cost to repair or replace the Program Products shall not be taken into consideration when determining if such remedy is commercially reasonable. Notwithstanding anything contained herein to the contrary, IgniteConnex shall cause Customer's system to be repaired to substantially the same condition as it existed prior to the introduction of any files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses at IgniteConnex's sole cost and expense. Such repairs shall be performed by a third party approved by Customer. To the extent not provided otherwise herein, for any breach of a warranty in this section, Customer's exclusive remedies are those described in Section 3 (Term and Termination) herein.
8.2. Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION OR AN ORDER FORM, THE PROGRAM PRODUCTS, INCLUDING ALL SERVER AND NETWORK COMPONENTS, AND, IN ADDITION, ANY SERVICES AS ARE PROVIDED IN CONJUNCTION WITH THE PROGRAM PRODUCTS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND IGNITECONNEX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT IGNITECONNEX DOES NOT WARRANT THAT THE PROGRAM PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM IGNITECONNEX OR THROUGH THE PROGRAM PRODUCTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA. THE PARTIES ADDITIONALLY AGREE THAT IGNITECONNEX WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CLIENT'S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE PROGRAM PRODUCTS, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CLIENT IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE.
8.3. Indemnification by IgniteConnex. IgniteConnex will indemnify, defend and hold Customer and Customer's employees, agents and representatives harmless from any third party claim, suit, action or proceeding against Customer arising out of Customer's use or purchase of the Program Products as permitted hereunder alleging that (i) such use of the Program Products infringe or misappropriate a third party's valid patent, copyright, trademark, or trade secret, (ii) any violation of applicable law or requirements or (iii) any breach by IgniteConnex of specified security safeguards under this MSA or an Order Form related to the Program Products that results in a breach of IgniteConnex's confidentiality requirements set forth in Section 5 of this MSA (each, a "Claim"). IgniteConnex will, at its expense, defend such Claim and pay damages, costs and expenses finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by IgniteConnex for such defense, provided that (a) Customer promptly notifies IgniteConnex of the threat or notice of such Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent IgniteConnex is prejudiced by the delay or failure; (b) IgniteConnex will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such Claim (however, IgniteConnex will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent); and (c) Customer fully cooperates with IgniteConnex in connection therewith. If use of a Program Product by Customer has become, or, in IgniteConnex's opinion, is likely to become, the subject of any such Claim, IgniteConnex may, at its option and expense, (i) procure for Customer the right to continue using the Program Products as set forth hereunder; (ii) replace or modify a Program Product to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by IgniteConnex, terminate this MSA and repay, on a pro-rata basis, any Fees previously paid to IgniteConnex for the corresponding unused portion of the Term for related Program Products. IgniteConnex will have no liability or obligation under this Section with respect to any Claim if such Claim is caused in whole or in part by (x) non-compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Program Products by anyone other than IgniteConnex; or (z) the combination, operation or use of the Program Products with other hardware or software where the Program Products would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of IgniteConnex to Customer and constitute Customer's sole remedy with respect to an infringement claim brought by reason of access to or use of a Program Product by Customer or Authorized Users. No agreement entered into by the Customer with a third party in conjunction with this MSA shall create in said third party any duty of indemnification as is set forth herein.
8.4. Indemnification by Customer. Customer will indemnify and hold IgniteConnex harmless against any third party claim arising out of (a) Prohibited Uses in breach of this MSA as set forth above; or (b) alleging that Customer Information infringes or misappropriates a third party's valid patent, copyright, trademark, or trade secret; provided (i) IgniteConnex promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by IgniteConnex without prior written consent); and (iii) IgniteConnex fully cooperates in connection therewith.
Section 9. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF THE PROHIBITED USES SECTION ABOVE, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS MSA, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER'S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF IGNITECONNEX), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS MSA OR THE PROGRAM PRODUCTS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS MSA OR THE PROGRAM PRODUCTS WILL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF IGNITECONNEX WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IGNITECONNEX HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE PROGRAM PRODUCTS PROVIDED FOR IN THIS MSA.
Section 10. Security Breach. If either Party reasonably suspects that such party has become the victim of a security or data breach, and Confidential Information may have been or may be at risk of being compromised or accessed without authorization, the party suspecting such security or data breach agrees to notify the other party within five (5) business days by email in accordance with Section 11.5 to the extent permitted by law. In the event of that either party believes the other party has become the victim of a security or data breach, and Confidential Information may have been or may be at risk of being compromised or accessed without authorization, the party suspecting such security or data breach may require a third party to audit the breached party's systems, at the suspecting party's costs (which costs may be reimbursed in the event an actual breach has occurred). Each Party agrees to cooperate with the other and any third-party auditor designated by the suspecting party, including providing such auditors with access to all necessary systems, documentation, materials, personnel, facilities, and any other information reasonably requested by such auditors. In the event a security or data breach is determined to have occurred, the breached party shall take prompt corrective action to cure any such breach and any action pertaining to such unauthorized disclosure of Confidential Information required by applicable federal and state laws and regulations.
Section 11. Miscellaneous.
11.1. Entire Agreement. This MSA, any active Order Forms, and the separate MNDA, if applicable, constitute the entire agreement, and supersedes all prior agreements, between IgniteConnex and Customer regarding the subject matter hereof.
11.2. Assignment. Neither Party may, without the consent of the other Party, assign this MSA, or any of the rights or benefits thereunder, to person or entity. Notwithstanding the foregoing, either Party may assign its rights and obligations under the Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. In the event of a consensual assignment, the assignee agrees to fulfill all, warranties, covenants and obligations pursuant to the term of this MSA and the assignor, whether it be IgniteConnex or the Customer, will indemnify and insure said compliance. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
11.3. Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
11.4. Relationship of the Parties. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
11.5. Notices. All notices provided under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service ("Courier") or U.S. mail to the contact mailing address provided by Customer on the Order Form; or (b) electronic mail to the electronic mail address provided for Customer's account owner. Customer must give notice to IgniteConnex either in writing by Courier or U.S. mail to 5420 W Plano Parkway Plano, TX 75093 Attn: Legal Department or by email to legal@IgniteConnex.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
11.6. Governing Law, Jurisdiction, Venue. This MSA will be governed by the laws of the State of Texas, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in a court of general jurisdiction in Dallas County, Texas. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Program Products by Customer, its agents, or Authorized Users.
11.7. Export Compliance. The services and other software or components of the Program Products that IgniteConnex may provide or make available to Customer are subject to U.S. export control and economic sanctions laws as administered and enforced by the Office of Foreign Assets and Control of the United States Department of Treasury. Customer will not access or use the Program Products if Customer or any Authorized Users are located in any jurisdiction in which the provision of the Program Products, software, or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and Customer will not provide access to the Program Products to any government, entity, or individual located in any Prohibited Jurisdiction. Customer represents and warrants that (a) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it will not permit any individuals under its control to access or use the Program Products in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) it will comply with all applicable laws regarding the transmission of technical data exported from the United States and the countries in which it and Authorized Users are located.
11.8. Anti-Corruption. Customer and IgniteConnex each represents and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other's employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either Party learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to the other.
11.9. Publicity and Marketing. IgniteConnex may use Customer's name, logo, and trademarks solely to identify Customer as a client of IgniteConnex on IgniteConnex's website and other marketing materials and in accordance with Customer's trademark usage guidelines so long as IgniteConnex has received Customer's prior written consent, and such use must be in accordance with Customer's usage and branding requirements and any other instructions provided by Customer. IgniteConnex may share aggregated and/or anonymized information regarding use of the Program Products with third parties for marketing purposes to develop and promote Program Products. IgniteConnex never will disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer or any identifiable individual as the source of the information.
11.10. Amendments. Neither party may amend this MSA without the prior written consent of both Parties. IgniteConnex or Customer's failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.