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Master Subscription Agreement

LINQ MSA

Last Updated: 2/6/2025

EMS LINQ, LLC MASTER AGREEMENT

The terms and conditions in this Master Agreement and any EMS LINQ, LLC (“LINQ”) ordering document executed or agreed to through an online ordering process (“Order Form”) form the entire agreement (“Agreement”) between the entity listed in any Order Form (“Customer” or “you”) and LINQ (“we”, “us” or “LINQ”) with respect to the products and/or services listed in any Order Form (“Products and Services”) and governs: (a) your rights to access and use software licensed on a term or perpetual basis (“Software”); (b) your rights to access and use software made available under a software-as-a- service delivery model for a term (“SaaS”); (c) any hardware purchased through LINQ (“Hardware”); (d) your rights to support and/or maintenance services which you purchase or are otherwise entitled to receive (“Support”); and (d) any professional services(“Professional Services”).

1. License Grant.

SaaS. LINQ grants you a non-exclusive, non-transferable, non-sublicensable, right to access and use the SaaS made available by LINQ on a subscription basis via your internet connection, solely in support of your operations for the Term speciﬁed on the relevant Order Form.
Software. LINQ grants you a non-exclusive, non-transferable, non-sublicensable, right to use the Software solely in support of your operations for the Term speciﬁed on the relevant Order Form or in the case of a perpetual license, until terminated as provided herein.
Beta Services. From time to time, LINQ may offer new Products and Services in a pre-release version or new features or functionality to existing Products and Services (“Beta Services”). Your use of the Beta Services is subject to the following terms and conditions: (i) You acknowledge and agree that the Beta Services are pre-release versions and may not work properly; (ii) You acknowledge and agree that your use of the Beta Services may expose you to unusual risks of operational failures; (iii) The Beta Services are provided “as-is”, “as available”, and “with all faults”; (iv) LINQ reserves the right to modify, change, or discontinue any aspect of the Beta Services at any time; (v) Commercially released versions of the Beta Services may change substantially, and programs that use or run with the Beta Services may not work with the commercially released versions or subsequent releases; (vi) Support Services may not be offered for Beta Services; (vii) You acknowledge and agree that all information regarding your use of the Beta Services, including your experience with and opinions regarding the Beta Services, is conﬁdential, and may not be disclosed to a third party.
Authorized Users. You agree to only grant access to the Products and Services to those individuals for whom these are intended and to who you have provided unique login credentials and passwords (“Authorized Users”). For the avoidance of doubt, Authorized User accounts and passwords are speciﬁc to individuals, and under no circumstances may accounts or passwords be shared; provided, however, that Your administrator(s) may reassign an account during the Term.
License Restrictions. Customer and its Authorized Users may not use the Products and Services beyond the usage, storage or other applicable restrictions set forth in the Agreement and shall not: (i) permit any third-party to install, conﬁgure, access, use or copy all or any portion of the Products and Services; (ii) modify, reverse engineer, decompile, disassemble, distribute, create derivative works based on, copy or otherwise exploit all or any portion of the Products and Services except as expressly permitted by applicable law, rule or regulation (iii) sell, sublicense, rent, lease, or otherwise transfer rights to all or any portion of the Products and Services; (iv) obscure, remove or alter any intellectual property rights notices or markings on the Products or Services; or (vi) use the Products and Services in any manner which could (a) pose a security risk or (b) disable, overburden, damage, or impair the performance or operation of the computing environment on which these are provided, (c) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code, or (d) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Products and Services or data belonging to customers contained therein.
Control of Services. LINQ may, in its sole discretion (i) reengineer, modify, and/or replace the technology, service architecture, components or infrastructure of the Products and Services and/or change how the Products and Services are provided; (ii) perform its obligations through its subsidiaries or aﬃliates, or through the use of subcontractors or third party providers provided that LINQ remain responsible for such other party’s performance of LINQ’s obligations; and (iii) remove features or functionality, change, discontinue or deprecate the Products and Services. LINQ may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modiﬁcations shall be effective immediately upon posting to this website. Your use of this website or the Products and Services after such changes or modiﬁcations have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this website or the Products and Services.

2. Professional Services.

If you purchase Professional Services, they shall be provided as described in any applicable attachment (such as a Statement of Work, Enhancement Request, or Change Order) and, unless otherwise stated, must be used within one (1) year of the Effective Date of the relevant Order Form. We will assign personnel with qualiﬁcations suitable for the Professional Services. We may replace personnel in our sole discretion with other suitably qualiﬁed personnel. While on Customer’s premises, LINQ personnel will comply with all documented security, conduct, and safety practices applicable to Customer’s own personnel to the extent that we have been notiﬁed in advance of such practices in writing. To the extent any employee or subcontractor is required to sign any waivers, releases or other documents as part of these security practices the terms thereof shall be invalid and have no effect against LINQ or its personnel. In addition to the terms and conditions of this Agreement, any non-standard or custom, development, project management, maintenance, or other Professional Services provided at Customer’s request and/or to address Customer’s individual requirements shall be subject to the terms and conditions of a Statement of Work (“SOW”) executed by the parties and payment of applicable fees speciﬁed therein.

3. Support

Subject to the terms and conditions contained in the support guide provided to you, LINQ shall provide you with technical assistance by telephone, e-mail, and/or chat, for the Products and Services throughout the Term.

4. Availability of Services

Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide the Products and Services on twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time the Products and Services may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto

5. Your Responsibilities

You shall: (a) be responsible for Your Authorized Users’ compliance with the terms and conditions of this Agreement, (b) be solely responsible for the use, accuracy, integrity, and legality of all yours and your Authorized Users data and Content (as deﬁned below), the means by which such data has been acquired, and obtaining any consent as may be required by applicable law, (c) use of the Products and Services in accordance with the applicable user guides and laws, rules, regulations (including, without limitation, relating to export, data protection and privacy), (d) prevent unauthorized access to or use of the Products and Services, and (e) notify LINQ in writing immediately of (i) any unauthorized use of, or access to, the Products and Services or any Authorized User account or password or (ii) any notice or charge of noncompliance with any applicable law, rule or regulation asserted or ﬁled against You in connection with Customer Data. You shall remain in compliance with all applicable law and regulations relating to your use of the Products and Services, including, but not limited to, laws and regulations applicable to email, SMS, chat, phone system integration (CTI) and social features. By using the Products and Services, you represent and warrant that you will not use the Products and Services to process or store any data which would be deemed “special category personal data” under applicable health and/or data privacy laws.

6. Third-Party Software

Third-Party Software. The Products and Services may utilize and/or include components or technology from third party solutions (“Third Party Software”). Yours and your Authorized Users access and use of the Products and Services including Third Party Software shall be governed by the applicable third-party terms and conditions.
Third Party APIs. Features that interoperate with third party services (such as Google) depend on the continuing availability of the API and program for use with the Products and Services. If a third party ceases to make the API or program available on reasonable terms to LINQ, LINQ may cease providing such third-party features without entitling You to any refund, credit, or other compensation.

7. Proprietary Rights and Data Protection

Ownership.
1. LINQ Property. LINQ owns all right, title and interest, including all Intellectual Property Rights, in and to the Products and Services, any and all modiﬁcations, enhancements, and/or developments (collectively, the “LINQ Property”). You hereby assign and agree to assign to LINQ all right, title and interest worldwide in the Intellectual Property Rights embodied in any and all Modiﬁcations. To the extent any of the rights, title and interest are not assignable by You to LINQ, You grant and agree to grant to LINQ an exclusive, royalty- free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) under Your Intellectual Property Rights to use, disclose, reproduce, license, sell, oﬀer for sale, distribute, import and otherwise exploit the Modiﬁcations in its discretion, without restriction or obligation of any kind or nature. Except as expressly stated otherwise in this Agreement, LINQ retains all of its right, title and ownership interest in and to the LINQ Property, and no other Intellectual Property Rights or license rights are granted by LINQ to You under this Agreement, either expressly or by implication, estoppel or otherwise, including, but not limited to, any rights under any of LINQ’S or its Aﬃliates patents.
2. Trademarks. LINQ‘s name, logo, trade names and trademarks are owned by LINQ, and no right is granted to You to use any of the foregoing except as expressly permitted herein or by written consent of LINQ.
3. Suggestions. You or your Authorized Users may, from time to time, provide suggestions, enhancement or feature requests or other feedback to LINQ with respect to the LINQ Property or other Products and Services, services or related documentation (whether or not such is disclosed or delivered by LINQ to You under this Agreement) (collectively, “Feedback”). You agree that all Feedback is and shall be given by You is entirely voluntarily. LINQ shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback in its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as conﬁdential by You, shall not create any obligation of conﬁdentiality for LINQ, unless LINQ expressly agrees so in writing.
Customer Data
1. Ownership of Customer Data. You and your Authorized owners, respectively own and retain all intellectual property rights in and to Customer Data provided to LINQ (“Customer Data”).
2. Content. Some of the features of this website or the Products and Services may allow Authorized Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“Submissions”), (b) literary, artistic, musical, or other content, including but not limited to photos and videos, or (c) other information about their business or customers (together with Submissions, (“Content”). All content submitted by an Authorized User or processed on your behalf is considered Content. By posting, publishing, or processing Content to this website or via the Products and Services, you represent and warrant to LINQ that (i) you have all necessary rights to process and distribute Content via this website or via the Products and Services and (ii) the Content does not violate the rights of any third party. You shall be solely responsible for any and all of yours and your Authorized Users Content, and the consequences of, and requirements for, distributing it.
3. Removal of Content. When using any Products and Services, you will not provide, post, publish, share or otherwise make available or accessible any illegal content or content that is incompatible with or violates this Agreement. Subject to applicable laws, LINQ reserves the right (but undertakes no duty) to screen Content and decide whether such Content is appropriate and/or complies with this Agreement. LINQ may take down or remove any Content and/or suspend or terminate an Authorized User’s access to the Products and Services for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by LINQ in its sole and absolute discretion), at any time and without prior notice. LINQ may also suspend or terminate your Order Form and Agreement if LINQ has reason to believe your Authorized Users are repeat offenders.
Data Privacy.
1. Student Data. Both parties agree to uphold their responsibilities under applicable data privacy laws, including FERPA, the Protection of Pupil Rights Amendment (PPRA), and the Children’s Online Privacy Protection Rule (COPPA), as applicable. We agree to treat personally identiﬁable information as conﬁdential. LINQ will implement commercially reasonable technical and organizational measures to ensure an appropriate level of security to protect Customer Data and Content (as deﬁned herein).
2. Data Processing. LINQ will only process Customer Data and Content on your instructions and behalf in accordance with the terms of this Agreement and applicable law. LINQ shall not: (a) assume any responsibility or liability for determining the purposes for which and the manner in which the data is processed, or (b) process the Data for its own purposes. You authorize LINQ to subcontract processing of Customer Data and Content to a third party provided that: (a) LINQ ﬂows down its obligations under this Agreement to protect such Customer Data and Content, and (b) LINQ remains fully liable to You for the acts, errors and omissions of any such third party resulting in a Security Incident (as deﬁned below).
3. Usage Data. LINQ may also collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices Your Authorized Users use to access the Products and Services. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of browser and modules that are used and/or accessed (“Usage Data”). Usage Data does not, however, include Customer Data.
4. Aggregated Data Use. You agree that LINQ may process Customer Data and Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the Products and Services in order to: (a) maintain and improve the performance and integrity of Products and Services, (b) understand which Products and Services are most commonly deployed and preferred by customers and how customers interact with Products and Services, (c) identify the types of Products and Services that may require additional maintenance or support, and (d) comply with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable You or any living individual to be identiﬁed.
5. Security. LINQ will, in the operation of its business, remain in compliance with all applicable and material federal, state and local laws and all applicable U.S. Department of Education rules and regulations. LINQ shall comply with all laws applicable to its provision of the Products and Services, including, the Family Educational Rights and Privacy Act (FERPA) as a “School Oﬃcial” and applicable security breach notiﬁcation laws. However, LINQ is not responsible for compliance with laws or regulations applicable to Customer or Customer’s industry that are not generally applicable to information technology service providers. LINQ does not determine whether Customer includes information subject to any speciﬁc law or regulation. Customer must comply with all laws and regulations applicable to its use of the Products and Services, including laws related to privacy, data protection and conﬁdentiality of communications. Customer is responsible for determining whether the Products and Services are appropriate for storage and processing of Customer Data and Content subject to any speciﬁc law or regulation.
6. Security Incidents. In the event of a conﬁrmed security incident resulting in the unauthorized access, alteration, or loss of Customer Data (“Security Incident”), LINQ will notify You within the time period required by applicable law and provide you with the information available to LINQ at such time relating to affected Customer Data. LINQ will notify You via telephone & email; parents will be notiﬁed via email.
7. Privacy Policy. You acknowledge and agree that LINQ’s privacy policy (which may be viewed at linq.com/privacy-policy/ ) shall apply to any Personal Data received or collected by LINQ from the Users.

8. Fees and Payment

Fees and Payment. Customer shall pay all fees speciﬁed in an Order Form in full on or before the 30th day following the date of the invoice via ACH. Fees set forth in each Order Form will be: (a) quoted and payable in United States dollars, and (b) non-cancelable and non-refundable. You agree to provide LINQ with complete and accurate billing and contact information and to promptly notify LINQ of any changes to such information. LINQ may, at its sole discretion and at any time, increase the fees for any subsequent renewal term for the same Products and Services.
Overages. Use of the Products and Services is restricted to the use limitations set forth in the applicable Order Form or in the applicable support terms of the Agreement, and as further deﬁned under each of the respective product terms below. Use in excess of these limitations is subject to additional fees and may be invoiced monthly by LINQ. Any failure by LINQ to timely invoice for any overages due under this paragraph shall not constitute a waiver of your obligation to pay such fees. You agree to timely pay any invoice issued for overages pursuant to this Agreement. You acknowledge and agree that excess use fees may be charged for additional usage beyond the applicable limitations, and for additional storage and/or bandwidth needed to support excess usage.
Purchase Orders. If your internal procedures require that a purchase order be issued as a prerequisite to fulﬁlling your payment obligations (the terms of which shall not control) you will e- mail such purchase order to receivables@linq.com and include any other relevant information required to ensure timely payment. You agree that the absence of a purchase order or other administrative procedure may not be raised as a defense to avoid or impair the performance of any of your obligations under the Agreement.
Additional Licenses. Additional licenses may be purchased at any time at the then-current rate. You understand and agree that You will be charged a pro-rata fee for the initial month in which licenses are added and for each of the monthly periods remaining in the then-current Term. Such additional licenses shall be valid for the Term of the existing related Order Form. You acknowledge and agree that the number of licenses purchased may not be decreased during the Term set forth on such Order Form.
Out of Pocket Expenses. You will also pay LINQ for travel expenses (lodging, meals, transportation and other related expenses) incurred in the performance of Professional Services. LINQ reserves the right to impose a minimum labor charge for each on-site visit. The rates and charges speciﬁed in LINQ’s acknowledgment of Your order will apply to those services originally ordered; however, LINQ reserves the right to change service rates or other terms as a condition of entering into any subsequent service engagement. If You pay in advance for any Professional Services, all such services must be scheduled and delivered within twelve (12) months of such payment, unless otherwise agreed in writing by LINQ; any portion of any prepaid services amount that has not been used by You toward services rendered within such twelve (12) month period will be forfeited.
Late Payments. Overdue amounts are subject to interest at a rate of one percent (1.0%) per month, or the maximum rate permitted by law, whichever is lower. If any charge owing by You to LINQ is thirty (30) days or more overdue, LINQ may, without limiting its other right and remedies, suspend services until such amounts are paid in full.
Taxes. Fees speciﬁed Order Forms do not include any taxes. Unless a tax exemption certiﬁcate is e-mailed to LINQ at receivables@linq.com You shall be responsible for payment and reimbursement of all taxes associated with such Order Form.

9. Term and Termination

Term. The Agreement commences as of the date on which an Order Form has been signed by both parties, accepted by you online, or as otherwise indicated on an Order Form (the “Effective Date”) and shall continue in effect until the expiration or termination of the of the Order Form (the “Term”). Except for termination rights described herein, the parties have no other right of early termination and are bound and committed to meet their payment and other contractual obligations throughout the entirety of the initial term and any renewal term of the Agreement.
Termination for Cause. Either party may terminate this Agreement or an Order Forms if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the beneﬁt of creditors.
Eﬀect of Termination. No refund of payments will be made, unless termination of this Agreement and any then current Order Forms is a result of an uncured material breach by LINQ in which case You will be entitled to a refund of the pro rata portion of fees associated with the remainder of the Term. You understand and agree that upon expiration of the Term or termination of this Agreement, whichever occurs ﬁrst, the rights granted under this Agreement and, in connection with any then-current Order Forms, will be immediately revoked and LINQ may immediately deactivate Your account. At LINQ’s request, You agree to return any hardware provided to You. You acknowledge and agree that LINQ may keep copies of Customer Data and Content to the extent necessary for the performance of its obligations under this Agreement and applicable law. In no event shall any termination relieve You of the obligation to pay any fees payable to LINQ for the period prior to the eﬀective date of termination, unless otherwise stated in this Agreement.
Surviving Provisions. Any provision that by its nature should survive, shall survive termination or expiration of this Agreement.

10. Conﬁdentiality

Conﬁdentiality. The Parties acknowledge that in the course of performing their obligations under this Agreement, each may receive Conﬁdential Information. Each party covenants and agrees that neither it nor its agents, employees, oﬃcers, directors or representatives will disclose or cause to be disclosed any Conﬁdential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Conﬁdential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party conﬁdential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of conﬁdence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Conﬁdential Information, (iii) acquired by it from a third party that is not under an obligation of conﬁdence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Conﬁdential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, source code and the structure, sequence and organization of the Products and Services are Conﬁdential Information of LINQ or its licensors.
Destruction. Within ten (10) days of a Disclosing Party’s written request, the Receiving Party shall return or destroy the Disclosing Party’s Conﬁdential Information; provided, however, the Receiving Party shall be entitled to retain archival copies of the Conﬁdential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless prohibited by applicable law.

11. Limited Warranties

Software, SaaS and Professional Services. LINQ warrants that (a) it has the legal power to, and hereby does, enter into this Agreement, (b) LINQ will use commercially reasonable measures to detect and remove malicious code from the Products and Services to the extent these are found within our control, (c) the Software or SaaS licensed to you will materially conform to the applicable standard documentation provided by LINQ, (d) we will perform Professional Services in a professional manner in accordance with industry standards; and (e) we will comply with all laws which govern the performance of our obligations hereunder. For any breaches of subsections (b), (c) or (d) above, our remedy may include a patch, ﬁx, work around, or other technical modiﬁcation. If we are unable to remedy the non-conformity within a reasonable period, then YOUR SOLE AND EXCLUSIVE REMEDY shall be: (i) for Professional Services, to seek a refund of the fees paid for the un-remedied services; and (ii) for licensed Software or SaaS, to seek recovery of direct damages caused by the breach, subject to the limitation of liability herein. Warranties provided by LINQ in this Agreement shall not apply if (i) you or your Authorized Users materially breach the Agreement, (ii) your unauthorized modiﬁcation or misuse of the Software or SaaS or (iii) incorrect, unlawful, offensive or otherwise undesirable, to you and/or your Authorized Users Content.
Hardware. We warrant your Hardware against defects in materials and workmanship under normal use for a period of thirty (30) calendar days from the shipping date. Your sole and exclusive remedy for breach of the foregoing is a replacement of the defective Hardware at no additional cost. You must return the defective Hardware to LINQ at the designated address and in the designated box, with all accessories, cords, cables, parts and documentation originally included, within fourteen (14) days of receiving your replacement, Hardware. If you fail to return the defective Hardware as required, we reserve the right to invoice you, and you agree to pay, for the replacement Hardware provided. This warranty shall not apply to Hardware that has been altered, tampered with, misused, intentionally damaged or damaged as a result of a force majeure event. Any third-party Hardware resold by us is provided solely according to the warranty and other terms speciﬁed by the manufacturer, who is solely responsible for service and support for its hardware
Customer Warranties. You warrant that (a) You have the legal power to, and hereby do, enter into this Agreement and have the authority to commit to the payment of fees for excess use and other overages, (b) you own or have suﬃcient rights in and to the Customer Data and Content in order for you and your Authorized Users to use, and permit the use of, the Products and Services, including the representations and warranties made above in connection with proprietary rights and data privacy, (c) Customer Data and Content shall not contain any malicious code, and (d) you will comply with all laws related to your use of our Products and Services.
Disclaimer of Warranties. EXCEPT FOR WARRANTIES EXPRESSLY MADE HEREIN, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, OUR LICENSORS, AND THIRD PARTY PROVIDERS MAKE NO WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT OR AGAINST HIDDEN OR LATENT DEFECTS.

12. Limitation of Liability

Mutual Limitation. EXCEPT AS EXPRESSLY PROHIBITED BY LAW AND OTHER THAN WITH RESPECT TO A BREACH OF YOUR LICENSE OR CONTENT RESTRICTIONS AND YOUR PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S OR SUCH PARTY’S LICENSORS’ CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED, IN THE AGGREGATE, THE LESSER OF (i) THE TOTAL AMOUNT PAID TO LINQ FOR THE AFFECTED PRODUCTS AND SERVICES OVER THE TWELVE (12)-MONTH PERIOD PRIOR TO THE FIRST CLAIM ASSERTED HEREUNDER OR (ii) TWENTY FIVE THOUSAND DOLLARS ($25,000).
Consequential Damages. EXCEPT AS EXPRESSLY PROHIBITED BY LAW AND OTHER THAN WITH RESPECT TO A BREACH OF YOUR LICENSE OR CONTENT RESTRICTIONS AND YOUR PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY OR SUCH PARTY’S LICENSORS BE LIABLE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY, FOR: (A) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY LOSS OR CORRUPTION OF DATA, OR (C) ANY INCIDENTAL,INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES).
Essential Purpose. THE PARTIES AGREE THAT THE WARRANTY DISCLAIMERS, LIABILITY EXCLUSIONS, INDEMNITIES, FEES AND LIMITATIONS OF THE AGREEMENT FORM AN ESSENTIAL BASIS OF THE AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE).

13. General

Publicity. LINQ may include Your name, logos and trademarks in LINQ’s customer presentations, website, brochures and other marketing materials and display areas at LINQ’s events to represent that You are a LINQ customer.
Assignment. Neither party shall be entitled to assign the Agreement or its rights or obligations under the Agreement, whether voluntarily or by operation of law, except with the written consent of the other party; provided, however, that either party may assign the Agreement without the consent of the other party to any aﬃliate, or any entity that is the successor corporation in any merger or consolidation of either party, or any entity that purchases a majority of the voting securities of either party, or all or substantially all of the assets of either party, or of a speciﬁc division or group of such party. The Agreement shall bind each party and its successors and permitted assigns.
Relationship of the Parties. LINQ and You are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties.
Insurance. LINQ shall maintain adequate insurance protection covering its activities hereunder, including coverage for statutory worker’s compensation, comprehensive general liability for bodily injury and tangible property damage, as well as adequate coverage for vehicles.
Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Texas, without regard to conﬂict of laws principles. The Parties expressly opt out of the application of the UN Convention on the International Sale of Goods. The foregoing choice of law shall not apply to publicly funded state institutions to the extent applicable state laws expressly prohibit the institution from agreeing to the application of a foreign state law.
Dispute Resolution. If any claim arising out of or relating to the Agreement, or a breach thereof, the parties will consult with each other to reach a satisfactory solution. If the parties are unable to resolve the dispute amicably, and unless expressly prohibited by applicable state law, You hereby (i) irrevocably submit itself to and consent to the exclusive jurisdiction of the federal courts located in Travis County for the purposes of any suit, action or other proceeding in connection with any controversy, claim or dispute relating to this Agreement or to enforce a resolution, settlement, order or award made pursuant hereto, and (ii) waive, and agree not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
Attorney’s Fees. Unless Customer is formed as a not-for-proﬁt or publicly funded state institution, in any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs.
Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, or mailed by certiﬁed or registered mail, postage prepaid, return receipt requested, and, in the case of notices to us, sent to EMS LINQ, LLC Attn. General Counsel, 2801 Via Fortuna, Suite 400, Austin, TX, 78746, or to such other address as shall be given in accordance with this section with a copy to legal@linq.com, and, in the case of you, to the address listed on your invoice, and shall in each case be effective upon receipt. LINQ reserves the right to provide email Notice, with electronic delivery conﬁrmation, to the current principal Customer contact. Actual receipt constitutes effective Notice as of the time of receipt.
Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, ﬂood, ﬁre, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s reasonable control, and denial of service attacks.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modiﬁed by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in eﬀect.
Entire Agreement. This Agreement and any Order Forms or exhibits attached hereto or referenced herein represent the entire agreement of the parties and supersede all prior discussions, emails, and/or agreements including requests for proposals, proposal responses, between the parties and is intended to be the ﬁnal expression of their Agreement. To the extent there is a conﬂict between this Agreement and any additional or inconsistent terms, including any pre-printed terms on Your purchase order, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein no terms stated in a purchase order or in any other order document (other than an Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. The Agreement and all exhibits hereto, including any related Order Forms may not be modiﬁed or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be eﬀective unless in writing and signed (either manually or electronically) by an authorized representative of You and LINQ. All rights not expressly granted to You are reserved by LINQ and its licensors.