KPMG ACCOUNTING RESEARCH ONLINE SERVICE PROVIDER AGREEMENT
IMPORTANT: READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES DESCRIBED HEREIN. BY SELECTING THE "I ACCEPT" BUTTON BELOW OR OTHERWISE USING OR ACCESSING THESE SERVICES (EACH AN "ACCEPTANCE" OF THIS AGREEMENT), YOU (THE "CUSTOMER") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THESE SERVICES AND IT IS YOUR RESPONSIBILITY TO EXIT THIS AUTHORIZATION PROCESS WITHOUT USING THE SERVICES BY SELECTING THE "I DO NOT ACCEPT" BUTTON BELOW.
DUE TO GOVERNMENT PROCUREMENT REGULATIONS AND SIMILAR LAWS AND REGULATIONS WHICH MAY VARY FROM JURISDICTION TO JURISDICTION, ENTITTIES GOVERNED BY OR SUBJECT TO SUCH LAWS OR REGULATIONS SHOULD CONTACT KPMG.
ARTICLE 1-SCOPE OF SERVICES
1.1 Description of Service.
1.1.1 Access to Software. The information contained and accessed on Accounting Research Online web site at www.aro.kpmg.com ("Site") is provided by the member firms of KPMG International Cooperative (collectively, "KPMG"). KPMG is the developer and owner of, or has rights to, certain web-based software to be provided to customers over the Internet; such software, its related content and any related documentation provided by KPMG, and the means used to provide the software to customers and the services described herein are collectively referred to as the "Service". Subject to Customer's payment of the applicable fees (see 3.1 Fees) and Customer's compliance with the terms of this Agreement, Customer, its subsidiaries and its and their employees ("Authorized Users") shall have the right to access and use the Service solely for Customer's and its subsidiaries' internal business purposes. Customer shall create their own password that will allow access to KPMG's Accounting Research Online for each specified of concurrent user. Customer shall not permit any individual or entity that is not an Authorized User to use the Service. Customer shall be responsible to ensure, by agreement or otherwise, that each Authorized User will: (a) be responsible for the security and/or use of his or her password; (b) not disclose such password to any person or entity; (c) not permit any other person or entity to use his or her password; (d) use the Service only in accordance with the terms and conditions of this Agreement and on the web site from which the Service is accessed. KPMG shall have the right, in its sole discretion, to deactivate, change and/or delete passwords of Authorized Users who have violated any such terms or conditions or are otherwise using or accessing the Service in a manner inconsistent with such terms and conditions and to deny or revoke access to the Service, in whole or in part, if KPMG believes Customer and/or its Authorized Users are in breach of such conditions. Customer shall also be responsible for any and all applicable costs and expenses incurred through the use of each Authorized User's password and for any access or use of the Service by Customer or any person or entity using a password provided to KPMG by Customer, whether or not such access or use has been authorized by Customer. Customer shall be solely responsible for ensuring that the access to the Service by an Authorized User who is no longer an employee of Customer or an affiliate of Customer is terminated. KPMG shall have no responsibility for managing, monitoring, and/or overseeing Customer's and its Authorized Users' use of the Service. Customer acknowledges that the Service may contain devices to monitor Customer's compliance with the restrictions contained herein and Customer's obligations hereunder.
1.1.2 Operating Environment. Customer is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to access and use the Service remotely via the Internet.
1.1.3 Changes to Service. KPMG may upgrade, modify, change or enhance the Service and convert Customer to a new version thereof at any time at its sole discretion.
1.1.4 Help Desk. KPMG shall make available to Customer, by telephone, a help desk - 24 hours each day (excluding KPMG holidays) - that Customer may call to report any problems with the Service. KPMG is not responsible for any services beyond the telephone help desk.
1.1.5 Availability of the Service. KPMG shall exercise reasonable efforts to keep the Service available twenty-four (24) hours a day, seven (7) days a week, subject to downtime for maintenance purposes, system outages and other circumstances beyond KPMG's control. The parties acknowledge that, since the Internet is neither owned nor controlled by any one entity, KPMG makes no guarantee that any given user will be able to access the Service at any given time. There are no assurances that access will be available at all times and uninterrupted, and KPMG shall not be liable to Customer for any unavailability of the Service.
ARTICLE 2—USE OF THE SERVICE
2.1 Scope of Use. Subject to the terms and conditions of this Agreement, including, without limitation, Section 2.2 hereof and Customer's payment of all applicable Fees (see 3.1 Fees), KPMG hereby grants to Customer a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable license (the "License"), during the Term, to access and use the Service remotely over the Internet, for Customer's and its subsidiaries' internal business purposes only, on a computer or a computer network owned and operated by Customer or an Authorized User, only by the number of concurrent Authorized Users and only using the passwords provided by KPMG for such Authorized Users for such use.
2.2 Restrictions. Customer and its Authorized Users shall not: (a) copy the Service or any portion thereof or permit unauthorized disclosure or copying of all or any part of the Service other than as required to use the Service remotely as intended by this Agreement (e.g. Authorized Users may print a reasonable number of copies of sections of the content available through normal use of the Services solely for their own internal reference); (b) translate, decompile or create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Service; (c) modify, adapt, translate or create a derivative work from the Service; (d) remove any proprietary notices, labels, or marks on the Service; or (e) sell, lease, loan, license, assign, sublicense, rent, transfer, publish, disclose, divulge, display, make available to third parties on a time-sharing or service bureau basis or otherwise make available for the benefit of third parties all or any part of the Service, including, without limitation, by transmitting or providing the Service, or any portion thereof, over the Internet, or otherwise, to any third party; (f) interfere or attempt to interfere with the Service in any way; (g) remove, obscure or alter any copyright notice, trademark or other proprietary rights notices affixed to or contained within the Service; (h) create any frames at any other web sites pertaining to or using any of the information provided through the Service; or (i) engage in or allow any action involving the Service that is inconsistent with the terms and conditions of this Agreement or those on the web site from which the Service is accessed. All rights not expressly granted hereunder are reserved to KPMG and its third party licensors.
ARTICLE 3-FEES AND PAYMENT TERMS
3.1 Fees. Customer (i.e., Subscriber, Authorized User, or Designated Payor) shall pay the engaging KPMG member firm, on an annual basis, the amounts set forth as published on KPMG's Accounting Research Online web page at www.aro.kpmg.com based on the number of Authorized Users who access the service concurrently (the "Usage Fee"). The Usage Fees shall be due within thirty (30) days of the date of invoice. The Usage Fees are subject to change from time to time upon KPMG's sole election. Customer shall, in addition to the Fees required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transaction(s) contemplated hereby, excluding, however, income taxes on net profits which may be levied against KPMG. Customer shall reimburse KPMG for the amount of any such taxes or duties paid or accrued directly by KPMG as a result of this transaction or the use of the Service by Customer or Authorized Users. If Customer fails to pay any Fees by the date they are due, Customer shall be liable to pay late fees for billed amounts at a rate of 1.5% per month.
ARTICLE 4-REPRESENTATIONS AND WARRANTIES
4.1 Warranties. Each party (the "Representing Party") represents and warrants to the other that: (a) it has the authority to enter this Agreement and to perform its obligations under this Agreement; (b) the execution and performance of this Agreement does not and will not violate any agreement to which the Representing Party is a party or by which it is otherwise bound; and (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of the Representing Party, enforceable in accordance with its terms. In addition to the foregoing: Customer represents and warrants to KPMG that Customer and its Authorized Users (i) will use the Service only for lawful purposes; (ii) will not interfere with, disrupt or place an undue burden or demand on the Service or the servers or networks involved with the operation of the Service or violate the regulations, policies or procedures of such networks; (iii) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through any other means; (iv) interfere with another user's use and enjoyment of the Service; or (v) permit another accounting firm to access the Service with the password issued by KPMG to the Customer or its Authorized Users.
4.2 Export Restrictions. Customer represents and warrants that it and all Authorized Users will comply with all applicable laws, rules and regulations in the jurisdiction from which they access the Service, including those laws, rules and regulations which apply to the access, import, use and export of controlled technology or other goods. Customer also agrees that it and all Authorized Users will comply with the applicable laws, rules and regulations of the jurisdiction from which KPMG operates the Service (currently, the United States of America). In particular, Customer represents, warrants and covenants that it shall not, without obtaining prior written authorization from KPMG and, if required, of the Bureau of Export Administration of the United States Department of Commerce or other relevant agency of the United States Government, access, use, export or reexport, directly or indirectly, the Service, or any portion thereof or any Confidential Information of KPMG (including without limitation information regarding the use, access, deployment, or functionality of the Service) from the United States to (a) any country destination to which access, use, export or reexport is restricted by the Export Administration Regulations of the United States Department of Commerce; (b) any country subject to sanctions administered by the Office of Foreign Assets Control, United States Department of the Treasury; or (c) such other countries to which access, use, export or re-export is restricted by any other United States government agency. Customer further agrees that it is solely responsible for compliance with any import laws and regulations of the country of destination of permitted access, use, export or reexport, and any other import requirement related to a permitted access, use, export or reexport.
U.S. Government Restricted Rights. The Licensed Materials are a "commercial item" as that term is defined in 48 CFR 12.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 CFR 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users acquire the Licensed Materials with only those rights explicitly set forth herein.
4.3 Warranty Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS PROVIDED HEREIN, THE SERVICE IS PROVIDED HEREUNDER WITH NO WARRANTY WHATSOEVER. CUSTOMER ACKNOWLEDGES AND AGREES THAT, WHILE KPMG AND ITS LICENSORS WILL ATTEMPT TO MAINTAIN THE SERVICE SO AS TO CONTAIN CURRENT INFORMATION, KPMG AND IS THIRD PARTY LICENSORS SHALL HAVE NO OBLIGATION TO DO SO AND NO LIABILITY TO CUSTOMER, ANY AUTHORIZED USER OR ANY THIRD PARTY FOR ANY FAILURE ON THE PART OF KPMG OR ITS THIRD PARTY LICENSORS TO DO SO. CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SERVICE IS AT ITS OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. KPMGAND ITS THIRD PARTY LICENSORS MAKE, AND CUSTOMER RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. KPMG AND ITS THIRD PARTY LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT AND ALL DUTIES AND OBLIGATIONS IMPLIED IN LAW. KPMG AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT THE SERVICE SHALL BE OPERABLE, SHALL PROPERLY STORE DATA, SHALL OPERATE UNINTERRUPTED OR ERROR FREE, SHALL BE SECURE, SHALL KEEP DATA CONFIDENTIAL, SHALL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SHALL MEET CUSTOMER'S NEEDS.
ARTICLE 5-LIMITATION OF LIABILITY
5.1 General. IN NO EVENT SHALL KPMG, ITS PARTNERS, PRINCIPALS, EMPLOYEES OR AGENTS OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST REVENUE, LOST PROFITS OR ANTICIPATED BUSINESS ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR THE SERVICE, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF INFORMATION OR DATA, HOWEVER CAUSED (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THE AGGREGATE LIABILITY OF KPMG OR ITS THIRD PARTY LICENSORS WITH RESPECT TO ANY DAMAGES INCURRED IN ANY ONE YEAR PERIOD IN THE TERM FOR ANY OTHER DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF, OR THE SERVICE, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS RECEIVED BY KPMG FROM CUSTOMER RELATING TO ITS USE OF THE SERVICE DURING SUCH ONE YEAR PERIOD. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTIONS OR CLAIMS IN THE AGGREGATE INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF KPMG'S SERVICES OR LICENSOR'S CONTENT HEREUNDER, AND OTHER TORTS. FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST KPMG OR ITS THIRD PARTY LICENSORS. CUSTOMER AND KPMG EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH KPMG'S OBLIGATIONS UNDER THIS AGREEMENT. THE PAYMENTS PAYABLE TO KPMG IN CONNECTION HEREWITH REFLECT THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES HEREIN.
5.2 Indemnification. Customer agrees to defend, indemnify and hold harmless KPMG and its partners, principals, employees, agents and its third party licensors with respect to any claim, demand, action, debt, loss, liability, cost and expense (including reasonable attorneys' fees, costs and expenses) arising from breach of this Agreement or any of the representations, warranties, obligations, covenants or agreements herein by Customer or its subsidiaries, or by any of the agents, employees or Authorized Users thereof, or in connection with use of the Service by or through Customer or its subsidiaries or any Authorized User whether or not such use was authorized by Customer. Subject to the term of Section 5.1, KPMG shall indemnify, defend, and hold harmless Customer and its affiliates and the directors, officers, employees and agents of the foregoing with respect to any claim, demand, action, debt, loss, liability, cost and expense (including reasonable attorneys' fees, costs and expenses) to the extent based upon any third party claim (an "Infringement Claim") that the Service infringes any copyright, patent, trademark, trade secret or other intellectual property right of any third party; provided, however, that KPMG shall have no obligation pursuant to the foregoing to the extent based on or related to (i) any use of the Service in violation of this Agreement; (ii) any use of the Service in conjunction with any product, data, hardware or software not provided by KPMG; or (iii) any data or information of Customer or its affiliates. The foregoing states the entire liability of KPMG with respect to any Infringement Claim, and Customer hereby expressly waives any other obligations or liabilities.
5.3 Indemnification Procedures. A Party seeking indemnification hereunder (an "Indemnified Party") shall give the Party from whom indemnification is sought (the "Indemnifying Party"): (i) reasonably prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (ii) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim; and (iii) the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
ARTICLE 6-CONFIDENTIAL INFORMATION
6.1 Confidential Information. The Service and information relating thereto and the business affairs or proprietary and trade secret information of KPMG in oral, graphic, written, electronic or machine readable form is herein referred to as "Confidential Information."
6.2 Non-Disclosure. Customer shall hold confidential all Confidential Information (as defined in Section 6.1) of KPMG and shall not disclose or use such Confidential Information without the express written consent of KPMG. Confidential Information of KPMG shall be protected by the Customer with the same degree of care as Customer uses for its own confidential information, but no less than reasonable care. Customer may disclose Confidential Information only to those of its employees who have a need to know the Confidential Information for purposes of performing or exercising rights granted under this Agreement and only to the extent necessary to do so. At any time upon the request of KPMG, the Customer shall promptly, at the option of KPMG, either return or destroy all (or, if KPMG so requests, any part) of the Confidential Information previously disclosed and all copies thereof, and the Customer shall certify in writing as to its compliance with the foregoing. Customer agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of KPMG's rights therein and to take appropriate action by instruction or agreement with its Authorized Users to satisfy its obligations hereunder. Customer shall use its best efforts to assist KPMG in identifying and preventing any unauthorized access, use, copying or disclosure of the Confidential Information, or any component thereof. Without limitation of the foregoing, Customer shall advise KPMG immediately in the event Customer learns or has reason to believe that any person has violated or intends to violate these confidentiality obligations or the proprietary rights of KPMG, and Customer will, at Customer's expense, cooperate with KPMG in seeking injunctive or other equitable relief in the name of Customer or KPMG against any such person. Confidential Information shall not include information which can be demonstrated by Customer: (i) to have become part of the public domain except by an act or omission or breach of this Agreement on the part of the Customer, its employees, or agents; (ii) to have been supplied to the Customer after the time of disclosure without restriction by a third party who is under no obligation to KPMG to maintain such information in confidence; or (iii) required to be disclosed by law or court order, provided that KPMG is provided a reasonable opportunity to prevent such disclosure, and, in the event of a disclosure, that the Customer apply best efforts to ensure that available confidentiality protections are applied to such information.
6.3 Passwords. Any and all passwords provided hereunder are deemed Confidential Information of KPMG. Customer and Authorized Users are responsible for maintaining the confidentiality of such passwords and shall be fully responsible for all activities that occur under such passwords. Customer agrees to (a) immediately notify KPMG of any unauthorized use of such passwords or any other breach of security pertaining to the Service, and (b) ensure that Authorized Users exit from their accounts at the end of each session. KPMG can not and will not be liable for any loss or damage arising from Customer's or any Authorized User's failure to comply with this Section 6.3.
ARTICLE 7-PROPRIETARY RIGHTS
7.1 Proprietary Rights. No right (except for the License right granted in Article 2), title or interest in any intellectual property or other proprietary rights are granted or transferred to Customer hereunder. KPMG and its third-party licensors retain all right, title and interest, including, without limitation, all patent, copyright, trade secret and all other intellectual property and proprietary rights, inherent in and appurtenant to the Service.
ARTICLE 8-TERM AND TERMINATION
8.1 Term; Termination. The term of this Agreement (the "Term") shall commence on the Date this Agreement is accepted and shall continue for an initial term of one (1) year thereafter, unless terminated earlier or renewed as set forth herein, and shall automatically renew for additional one (1) year terms unless either party cancels such renewal by written notice to the other party at least sixty (60) days in advance of the expiration of the then-current term. KPMG may immediately terminate this Agreement and the Service in the event that: (a) Customer or any Authorized User breaches any obligation, warranty, representation or covenant under this Agreement, or (b) Customer becomes insolvent or is unable to pay its debts as due, enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar laws of any other jurisdiction or transfers all of its assets to another person or entity (c) termination of intellectual property rights by any third party licensor. If timely payment is not received by its due date, KPMG reserves the right to either suspend or terminate Customer's or Authorized User's access to the Service. Upon termination or expiration of this Agreement for any reason, the License and the Service shall terminate, Customer will be obligated to pay any and all Fees due hereunder up through the date of such termination or expiration and KPMG shall have no further obligations to Customer. Sections 2.2, 3.3, 4.3, 5, 6, 7, 8, and 9 hereof shall survive the expiration or termination of this Agreement for any reason.
ARTICLE 9-PRIVACY STATEMENT
9.1 Registration Information; Data Protection; and Transfer of Data.
When you register or submit information to KPMG, we will use this information in the manner outlined in the KPMG Privacy Statement.
Customer is able to update, modify or change their registration information by using the "MANAGE ACCOUNT" link provided on the Site. This link will take Customer to their registration information where KPMG ask that Customer keep their information details up to date.
10.1 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier/facsimile, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier; (e) upon transmission if sent via e-mail with a telecopy/facsimile sent the same day, in each case addressed to (i) for purposes of KPMG, the KPMG contact provided to Customer with the initial password(s) for access to the Service and (ii) for purposes of Customer, the contact provided by Customer to KPMG after acceptance of this Agreement.
10.2 Governing Law and Venue. This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York, U.S.A. (excluding any conflict of laws or provisions of the State of New York). Any suit or proceeding relating to this Agreement shall be brought in the courts, state and federal, located in New York County, State of New York, U.S.A.
10.3 UCITA Disclaimer. THE PARTIES AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM ("UCITA"), SHALL NOT APPLY TO THIS AGREEMENT. TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN.
10.4 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without KPMG's prior written consent.
10.5 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
10.6 Modifications. Any modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of KPMG and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of KPMG and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section.
10.7 Waiver. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
10.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, such holding shall not affect the validity or enforceability of the other provisions of this Agreement.
10.9 Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
10.10 Publicity. KPMG may use the name of and identify Customer as a KPMG customer, in advertising, publicity, or similar materials distributed or displayed to prospective customers. Customer may not refer to the KPMG name or the Services (including any content) in any press release, advertisement, and other promotional material in connection with this Agreement without the prior consent of the other KPMG and/or its third party licensors.
10.11 Entire Agreement. This Agreement (including the Schedules and any addenda) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.