PHASIO SUBSCRIPTION AGREEMENT
Last Modified: February 27, 2024
The Phasio Subscription Agreement (“Agreement”) entered into the date listed on the web checkout page (“Effective Date”) between you, the party identified on the web checkout page (“Client”) and Phasio PTE Ltd, located at 68 Circular Road #02-01 Singapore 049422 (“Phasio”). This Agreement includes all terms set forth herein and any terms in a fully-executed Subscription Order Form (defined below) that incorporates this Agreement.
PLEASE BE AWARE THAT THERE ARE ARBITRATION PROVISIONS CONTAINED IN THIS AGREEMENT.
By clicking “I agree”, or accessing or subscribing to the Phasio Software (defined below), you agree to be bound by this Agreement. We may amend our Agreement or and may notify you when we do so. If you do not agree with any changes, please notify us in writing and cease using the Phasio Software immediately
1. Definitions
1.1 “Phasio Software” means collectively the cloud based Phasio software accessed at phasio.io (or an associated website) along with any other software/modules, associated documentation, data, code, and other materials made available to Client by Phasio as generally described on the phasio.io website. The Phasio Software does not include the Third Party Software (defined below) or any additional services except as stated within this Agreement.
1.2 “Change Order” means a change order form to request an Enhancement to the Phasio Software.
1.3 "Client Data" means any and all Client data, code, software, content, notes, information, or other materials inputted, interfacing with, or used within the Phasio Software.
1.4 “Documentation” means the content and materials describing the Phasio Software and any associated features that are made available to Client via Phasio’s website, which may be updated from time to time.
1.5 "Intellectual Property Rights" means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered that are owned by a Party.
1.6 “Third Party Software” means the Third Party Software that may need to be purchased in order for Client to access all features offered by Phasio.
1.7 “Party” and/or “Parties” mean Phasio or Client in the singular, and Phasio and Client in the plural.
1.8 “Subscription Order Form” means the subscription order form which sets forth Client’s subscription details to the Phasio Software which may be generated as a separately emailed or web accessible online quote or may be attached to this Agreement.
1.9 “Support” means any support services offered to Client for Phasio Software, subject to this Agreement.
2. Phasio Software Subscription
2.1 Phasio Software Subscription. Phasio provides the Phasio Software as a recurring subscription (a “Subscription”). Subject to the terms and conditions of this Agreement and the Subscription Order Form and upon timely payment of any Subscription Fees (defined below), Phasio shall make available the Phasio Software. Upon compliance with the obligations set forth within this Agreement, Phasio grants Client a worldwide, non-exclusive, non-transferable, non-sub-licensable, terminable, limited license to use the Phasio Software for the duration of the Subscription for any downloadable portions of the Phasio Software. Where any Phasio Software is accessed electronically whether web based or otherwise, Phasio shall allow Client to access the Phasio Software for its own internal business purposes and limited to any of Client’s authorized users in accordance with this Agreement. During Client’s Subscription, Phasio may make updates, modifications, alterations or removals to the Phasio Software and may update the functionality, user interface, usability, Documentation associated, other documentation, training and educational information of, and relating to the Phasio Software from time to time in its sole discretion and in accordance with this Agreement. Nothing in this Agreement obligates Phasio to offer any previously offered functionality within any updated version of the Phasio Software.
2.2 Client shall order the Subscription by executing a Subscription Order Form. Each Subscription Order Form executed is subject to this Agreement. Except for Enhancements (defined below), any additional services required by Client shall be subject to a separate agreement entered into by and between the Parties. Any executed Subscription Order Form is non-cancellable and all Subscription Fees are non-refundable.
2.3 Phasio Software Enhancements. During the Subscription period, where Client requires the creation of Phasio Software enhancements (“Enhancement”), such Enhancement shall be set forth in a Change Order. All Intellectual Property Rights for any Enhancement shall be retained by Phasio and any Enhancement may be offered to all other clients of Phasio. Client shall have no ownership rights or any Intellectual Property Rights in any Enhancement created on its behalf and Phasio shall own all right, title, and interest in any Enhancement. Phasio shall have no obligation to offer or perform any Enhancement requested by Client until a Change Order has been executed by the Parties. Each Enhancement Change Order shall be subject to this Agreement.
2.4 Third Party Software. The Phasio Software does not include, and Phasio does not warrant, software obtained from any source other than Phasio including any Third Party Software or any software, code, data, or other materials provided by Client. Client understands and agrees that the Phasio Software will transmit, process, and store all Client Data in a secure manner; however, any issues with the transmission, processing, or storage of any Client Data by any Third Party Software are solely to be resolved by and between Client and the party that controls such Third Party Software.
2.5 Additional Software Purchase Required. In order to properly use portions of the Phasio Software, Client may be required to purchase a subscription to the Third Party Software. The use of the Third Party Software is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between Client and such other party. Phasio is not a party to any agreements entered into between Client and any other party.
2.6 Client Requirements. Client shall be exclusively responsible for supervision, management and control of its use of the Phasio Software, including without limitation; (a) assuring proper machine configurations, audit controls and operating methods; (b) creating, modifying, entering, reentering, transmitting, or sharing any Client Data; (c) monitoring and maintaining proper access controls and security for its authorized users; (d) ensuring that all authorized users abide by this Agreement, the Phasio Terms of Service, any Subscription Order Form terms, or other guidelines or instructions issued by Phasio; (e) complying with all reasonable instructions from Phasio regarding the Phasio Software; and (f) restricting access to any third parties that are not authorized to access the Phasio Software under this Agreement. Client and all authorized users shall be required to accept and adhere to the Phasio Terms of Service located at: https://www.phas.io/terms-of-service.
2.7 Subscription Change. Where Client wishes to increase the scope of its Subscription, the Parties may execute a new Subscription Order Form as required by Phasio or Client may be able to upgrade its Subscription through the Phasio Software where permitted. Where a Subscription is offered via a Subscription Order Form, a new Subscription Order Form must be executed and agreed upon by both Parties to become effective. Where a new Subscription Order Form is executed, Phasio shall have no obligation to offer any Subscription to the Phasio Software at any pricing previously offered to Client.
2.8 Free Trials. Phasio may offer free trials. The free trial period shall be stated in writing by Phasio and upon expiration of the free trial period, Phasio may charge any payment method Client has provided for Client’s ongoing subscription. Free trials are offered at Phasio’s discretion and nothing obligates Phasio to offer or continue offering any free trials to any Client or prospective client.
3. Payment and Pricing
3.1. Fees. Client will pay to Phasio all fees and expenses (the “Fees”) as specified in any Subscription Order Form. Any Fees shall be invoiced to Client from time to time, where the due date is not otherwise specified in the Subscription Order Form, all Fees are due within five (5) days from the date of invoice issuance. All Fees are non-refundable. Unless otherwise specified, all Fees are in U.S. dollars and must be pre-paid prior to Client’s usage of the Phasio Software. Client shall pay the Fees to Phasio in a method agreed upon between the Parties or as set forth within the Subscription Order Form. Failure by Client to pay any Fees may result in the immediate termination or suspension of its access to the Phasio Software.
3.3 Taxes. Client is responsible for any duties, customs fees, or taxes (other than Phasio’s income tax) associated with the purchase of the Phasio Software provided by Phasio, (including any related penalties or interest) (“Taxes”), and shall pay the listed Fees without deduction for Taxes.
3.4 Prior to any Subscription term renewal as set forth within a Subscription Order Form, Phasio may provide Client written notice that the Fees paid for the Phasio Software may increase prior to the commencement of the new term. Where Phasio provides such a notice of a fee increase, Client may provide thirty (30) days written notice to terminate this Agreement prior to the commencement of the new term. Where Client does not provide written notice of termination such Fee increase shall be deemed accepted by Client at the commencement of the new term.
3.5 Delinquencies. Any late payments by Client will accrue late charges at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower (such charges, “Interest Charges”). Client shall pay to Phasio any Interest Charges as invoiced by Phasio. Where Client fails to timely pay any invoices, Phasio may at its discretion suspend its provision of Phasio Software to Client until such invoice is paid. In addition, Client will be responsible for any costs resulting from collections of any undisputed, overdue balance, including, without limitation, reasonable attorneys’ fees and court costs.
3.6 Revenue Sharing. The Phasio Software may make available a revenue sharing feature for some clients. Where Client has been selected by Phasio for such feature and where Client has enabled such feature, Phasio through a Third Party Software provider may assist Client in collection of payments from Client’s customers. Phasio shall be paid a percentage of any payments collected through such feature and such percentage shall be stated within Client’s account. Any such percentage payment collected by Phasio is non-refundable and Phasio may offset any Fees owed by Client to Phasio through such revenue sharing feature at its discretion.
4. Restrictions and Suspension
4.1 Where applicable, all rights in the Phasio Software not expressly granted under this Agreement are reserved to Phasio or its licensors. Without limiting the foregoing, Client shall not, and shall not permit others under its control to (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Phasio Software or any component thereof; (b) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Phasio Software to any third party except any permitted authorized users; (c) use the Phasio Software for High Risk Activities or otherwise contrary to the instructions of Phasio; or (d) use the Phasio Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service. “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Phasio Software could lead to death, personal injury, or environmental damage.
4.2 Phasio may suspend Client’s access to, or use of, the Phasio Software, if in Phasio’s discretion it believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Phasio Software or any related content, code, or data (b) Client is accessing or using the Phasio Software to commit an illegal act; or (c) there is a violation of this Agreement or other agreements between the Parties . When reasonably practicable and lawfully permitted, Phasio will provide Client with advance notice of any such suspension. Phasio will use reasonable efforts to re-establish the Phasio Software promptly after Phasio determines that the issue causing the suspension has been resolved. Any suspension under this section shall not excuse Client from Client’s obligation to make payments for any Fees or other sums due under this Agreement.
5. Proprietary Rights and Client Data
5.1. Phasio’s Proprietary Rights. Phasio retains all right, title and interest in and to all the Phasio Software along with all general techniques, methods, processes, routines, tools, concepts, inventions, patterns, algorithms, techniques and know-how developed previous to or during the Subscription term. Further, Client acknowledges that the structure, organization, and code of the Phasio Software and all related Enhancements and software components thereof are proprietary to Phasio and/or Phasio's licensors and that Phasio and/or its licensors retains exclusive ownership of the Phasio Software, Enhancements, trademarks, and any and all other Intellectual Property Rights relating to the Phasio Software, including all modifications, derivatives, and other software and materials developed hereunder by Phasio, and all copies thereof. Client shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Phasio Software, including any modifications, enhancements, derivatives, and other software and materials developed by Phasio. Client agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Client takes to secure and protect its own intellectual property.
5.2. Trademarks. “Phasio” and any other trademarks and service marks adopted by Phasio to identify the Phasio Software and other Phasio products and services belong solely to Phasio. Client has no rights in such marks except as specified in writing between the Parties. Client may not publicly display the Phasio logo, its marks without express written consent from Phasio.
5.3. Feedback. If Client provides Phasio any suggestions or feedback regarding the Phasio Software (“Client Feedback”), then Phasio may use the Client Feedback without obligation to Client, and Client hereby irrevocably assigns to Phasio all right, title, and interest in that Client Feedback.
5.4 Client Data. Client owns all Client Data provided to Phasio. Title to Client Data and any copy thereof remains with Client. Notwithstanding Client's ownership of its Client Data, Client grants to Phasio a limited, royalty free, fully revocable license to the Client Data for the purposes of providing the Phasio Software contemplated under this Agreement. Phasio will not share any Client Data with any third parties except for Client’s authorized users or Phasio’s contractors that have entered into appropriate agreements with Phasio. However, Client may share or make available its Client Data through the Phasio Software and Client is solely responsible for such distribution or sharing of its Client Data. Client represents and warrants: (1) it owns all title, right, and interest in the Client Data; (2) the Client Data is not currently involved in any litigation with any third Parties, (3) the Client Data does not infringe on the intellectual property rights of any other Party; and (4) that all Client Data is compliant with all laws and regulations of Client and Phasio’s jurisdictions. During Client’s use of the Phasio Software, Client shall not upload any Client Data that is in violation of any US state or federal laws. In addition, Client grants Phasio the right to use such Client Data to help diagnose problems with Phasio’s Software, for benchmarking and analytical purposes, and to improve the Phasio Software. Phasio is not responsible for lost or destroyed Client Data, which loss or destruction shall be at Client's sole risk.
6. Term & Termination
6.1. Agreement Term. This Agreement will begin on the Effective Date and continue as set forth within the Subscription Order Form and renew as stated. Where no term is specified within the Subscription Order Form, the initial term for the Subscription shall be a one (1) year term (the “Initial Term”) after the expiration of such Initial Term, this Agreement shall automatically renew for one (1) year terms until terminated by either Party.
6.2. Termination for Breach. Either Party may terminate the Agreement if the other Party breaches any material term of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of such breach by the non-breaching Party.
6.3. Effect of Termination. If the Agreement expires or is terminated, then: (1) the rights granted by one Party to the other will immediately cease except where such right is required to perform an obligation set forth in this Agreement; and (2) all Fees pre-paid to Phasio shall not be refunded and all Subscription Fees for the Subscription period shall be immediately due upon receipt of a final invoice from Phasio. Client may request that Phasio assist Client with migrating any Client Data and Phasio may assist at its discretion and subject to any data migration fees.
7. Warranties
7.1 Phasio Software Warranty. Phasio represents and warrants that the Phasio Software will generally conform in accordance with any Documentation provided.
7.2 Authority. Each Party warrants that it has full power and authority to enter into this Agreement.
7.3 No Lawsuits. Each Party represents and warrants that entering into this Agreement shall not violate a third party right or interest or that there is any pending lawsuit or litigation that would preclude it from entering into this Agreement.
7.4 Client acknowledges that any Client Data or reports generated, obtained or acquired through the use of the Phasio Software is used at Client's sole risk and discretion. As Client inputs all Client Data, Phasio is not liable or responsible for any results generated through the use of the Phasio Software.
8. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PHASIO NOR ITS AFFILIATES PROVIDES ANY OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE PHASIO SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PHASIO OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PHASIO OR ITS AFFILIATES BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF PHASIO TO CLIENT UNDER THIS AGREEMENT EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CLIENT TO PHASIO DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM ARISES, OR FIFTY THOUSAND US DOLLARS ($50,000). THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT BE LIMITED OR EXCLUDED.
10. Indemnity
10.1. Indemnity. Indemnity by Phasio. Phasio shall defend or settle at its sole expense any claim brought against Client, its directors, officers, or employees by a third party alleging that the Phasio Software infringes or misappropriates any patent, copyright, or trade secret of a third party, and Phasio shall pay all damages finally awarded or costs of settlement of the claim provided that Client: (1) provides Phasio prompt written notice of any claim; (2) gives Phasio sole control of the defense and settlement of the claim; and (3) provides all reasonable assistance in connection with the claim. If Client’s rights to use the Phasio Software are, or in Phasio’s opinion could be, enjoined due to an indemnified claim, then Phasio may, at its sole discretion and expense: (a) procure for Client the right to continue using the Phasio Software according to the terms of this Agreement, (b) modify the Phasio Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the Subscription and refund any Fees paid for the Subscription prior to any indemnification claim in this Section.
10.2 Exclusions. The indemnity provided by Phasio under this Agreement does not extend to claims arising from or relating to (1) use of the Third Party Software or any software provided by Client; (2) modifications to the Phasio Software not provided by or approved in writing by Phasio; (3) use of the Phasio Software in combination with any data, software, or hardware not provided by Phasio to the extent the alleged infringement would not have occurred without the combination; (4) use of the Phasio Software that is outside the scope of permissible use as defined by Phasio; or (5) allegedly infringing activities that continue after Phasio has informed Client in writing of and made available to Client at no additional charge a version of the Phasio Software that would have avoided the alleged infringement.
10.3. Remedy. This section states Client’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled “Limitation of Liability.”
10.4. Additional Indemnity. Client will indemnify and hold Phasio, its directors, managers, officers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising from: (1) the unpermitted use of the Phasio by Client or its authorized users; (2) any information or results obtained through use of the Phasio Software; and (3) any breach of this Agreement by Client and/or its authorized users.
11. Availability and Support
11.1 Availability. The Phasio Software shall be generally available and accessible; however, as the availability of the Phasio Software is contingent on the availability of the Third Party Software, Phasio cannot make any guarantees regarding any up-time or availability. From time to time the Phasio Software may be unavailable due to regular maintenance, repair, or system updates generally where practicable Phasio shall notify Client of such unavailability.
11.2 Support Levels. During the term of this Agreement Phasio shall maintain generally available support for the Phasio Software during normal business hours United States’ eastern time zone. Support requests shall be resolved by priority level at Phasio’s discretion.
12. Miscellaneous
12.1. Publicity. Client may state publicly that it is a user of the Phasio Software, and Phasio may identify Client as a user of the Phasio Software, provided that any such statements shall conform with the trademark usage guidelines provided by one Party to the other.
12.2. Assignment. The Agreement may not be assigned by either Party by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety along with any other agreements, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates.
12.3. Conflicting Terms. If there is a direct conflict among the documents that make up the agreement between the Parties, the documents will control in the following order (first to last): (1) the Subscription Order Form, (2) this Agreement, (3) Change Order, and (4) the Phasio Terms of Service.
12.4. Entire Agreement. The Agreement along with any exhibits, Subscription Order Forms, Change Orders, and the Terms of Service, sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into the Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.
12.5. Export Controls. Client agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Client’s use of the Products. In particular, but without limitation, the Phasio Software may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Client represents and warrants that Client are not located in, under the control of, or a national or resident of any such country or on any such list.
12.6. Force Majeure. Phasio will not be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control including but not limited to an act of God, war, insurrection, riot, strike or labor dispute, contagion, shortage of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, internet or telecommunications outage, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
12.7. Governing Law. The Agreement is to be construed in accordance with and governed by the internal laws of the state of California and the federal laws of the United States without regard to its conflict of laws principles. Any and all disputes arising out of or relating to this Agreement, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration before one arbitrator in accordance with the then applicable rules of the JAMs (jamsadr.com). Any arbitration shall take place in San Francisco, CA. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. If any Party to this Agreement brings an action to enforce its rights hereunder or to interpret or apply this Agreement, the prevailing Party shall be entitled to recover all of its costs and expenses, including legal interest thereon and all of its reasonable attorneys’ fees and costs incurred in connection with such action. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within San Francisco County, CA.
12.8. Independent Contractors. The Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors.
12.9. No Third-Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.10. Notices. All notices must be in writing and addressed to the other Party’s legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
12.11. Severability and Waiver. In the event that any provision of the Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.12. Survival. Any portion of the Agreement that a reasonable Party would deem to survive termination of this Agreement shall survive including but not limited to: Payment Obligations, Restrictions, Proprietary Rights, Effect of Termination, Indemnification, Disclaimer, Limitation of Liability, relevant Subscription Order Form provisions, and Miscellaneous.
12.13. Modifications. Except as expressly provided herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each Party.