Services Agreement

Last Updated: on March 22, 2023

This Services Agreement (the "Agreement") is entered into by and between Linkall Holdings Limited , a HongKong corporation ("Vanus"), and the entity or person placing an order for or accessing Service ("Customer"). Such parties are hereinafter referred to collectively as the "Parties" or individually as a "Party". Vanus and Customer agree as follows:

Subscription Services
1. Services. Vanus operates a data streaming platform as well as several paid subscription plans with additional support and product features to allow customer to collect data from sources and send it to destinations such as Database and other SaaS for Customer's use. Technical information about Sources and Destinations can be found in the Documentation here: https://docs.vanus.ai/. The Services are purchased as subscriptions, the specifics of which are described in one or more order forms (the “Order Form”) that may be entered into by the Parties from time to time.
2. Order Forms. Each Order Form sets forth the Services and related deliverables Vanus is providing to the Customer as well as the subscription fees (the “Fees”). Each Order Form shall be governed by the terms and conditions of this Agreement. If there are any terms and conditions in any Order Form that conflict with the terms of this Agreement, then the terms of the Order Form shall take precedence over any inconsistent terms in this Agreement.
3. Affiliate Orders. An “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. An Affiliate of Customer may enter its own Order Form(s) as mutually agreed with Vanus. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
Payment
1. Fees. All Fees set forth in the Order Form are payable by Customer in United States Dollars unless otherwise specified in the applicable Order Form. Fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable, and fees paid are non-refundable, and (iii) the subscription services purchased cannot be decreased during the relevant subscription term.
2. Invoicing and Payment.
  1. Debit Card, Check or Wire Transfer. All payments due under this Agreement shall be made by check or bank wire transfer. Such charges shall be paid in advance in accordance with the frequency stated in the applicable Order Form.
  2. Invoices. Vanus will invoice Customer in advance in accordance with the relevant Order Form. Payments for invoices are due within [30 days] of the date of invoice unless otherwise specified on the Order Form, and are considered delinquent after such date. Notwithstanding the foregoing, in no case shall any Fees be due, or shall Customer be charged, prior to the due date set out in the applicable Order Form.
  3. Billing Information. Customer has provided on the Order Form complete and accurate billing and contact information (including all actions necessary to obtain payment from Customer, such as purchase order requirements if applicable) to Vanus.
3. Overdue Charges. If any undisputed invoiced amount is not received by Vanus by the applicable due date, then without limiting Vanus's rights or remedies, those charges may accrue late interest at the rate of [1.5]% of the outstanding undisputed balance per month, or the maximum rate permitted by law, whichever is lower.
4. Suspension of Service and Acceleration. In the event of delinquent payments under this Agreement or any other agreement, without limiting Vanus's other rights and remedies, Vanus may accelerate Customer's unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend or terminate the Services to Customer until such amounts are paid in full. Notwithstanding anything contrary hereof, Vanus shall not be liable for any losses, claims, damages, liabilities and expenses of the Customer or any third party that arises from the suspension or termination of the Service by Vanus due to the Customer's delinquent payment.
5. Increase and Decrease of Services. Customer may choose to increase the Services during an Order Form subscription term. If Customer chooses to increase the Services during a subscription term, any incremental subscription charges associated with such increase will be charged in accordance with the remaining subscription term of that Order Form. The subscription charges will reflect any such increases in any future subscription terms. The subscription services purchased cannot be decreased during an Order Form subscription term. If Customer chooses to decrease the Services, Customer must notify Vanus of any decrease 30 days prior to the beginning of the subsequent subscription term. A decrease of the Services may cause loss of content, features, or capacity of the Service as available to Customer under Customer's account. Customer acknowledges and agrees that Vanus does not accept any liability for such loss.
6. Taxes. Vanus's fees do not include any taxes, levies, duties or similar governmental assessments, including, for example, value-added, sales, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If Vanus has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Vanus will invoice Customer and Customer will pay that amount unless Customer provides Vanus with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Vanus is solely responsible for taxes assessable against it based on its income, property and employees.
Term and Termination
1. Term of Agreement. This Agreement commences on the execution date of the first Order Form by the Parties and continues until all subscriptions under all Order Forms have been terminated, including by expiry. By using any Service or delivering any Order Form, the Customer shall be deemed to have entered into this Agreement and agrees to be bound by all terms and conditions under this Agreement.
2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. If no term is specified in the Order Form, the subscription term shall be a period of 3 months beginning on the date immediately following the termination of the evaluation period, if any. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to one year unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.
3. Termination. Either Party may terminate this Agreement if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within thirty (30) days; (iii) both Parties consent to terminate this Agreement in writing. In the event of any termination, Customer will remain liable for any undisputed amounts due under this Agreement.
4. Survival. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, confidentiality, warranty disclaimers, indemnity, and limitations of liability.
Vanus Responsibilities
1. Provision of Services. During the Term, Vanus will make the Services available to Customer for its internal business purposes in accordance with the Documentation, this Agreement, and any applicable Order Forms.
2. Maintenance and Support. Vanus will provide assistance and technical support (“Support Services”) to Customer according to the subscription plan purchased.
3. Protection of Customer Data. Vanus will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. The Parties agree to comply with the terms of the data protection addendum as promulgated and published by Vanus from time to time to the extent that the European General Data Protection Regulation (GDPR) or other applicable data protection laws apply to the processing of personal data under this Agreement.
4. Updates and Patches. Customer acknowledges that Vanus may from time to time issue updates, bug fixes, or patches (“Updates”) to the Services, and may automatically electronically issue these Updates. Access to these Updates shall be provided to Customer provided that there is not a suspension of services under Section 2.4. Customer hereby consent to any automatically issued Updates. Notwithstanding anything to the contrary, Customer agrees to implement any manual Updates within a commercially reasonable period of time.
Customer Responsibilities
1. Usage Restrictions. Customer shall not, and shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Services, in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Vanus or its suppliers contained on or within any copies of the Services; (e) use the Services for the purpose of creating a product or service competitive with the Services; (f) use the Services with any unsupported software or hardware (as described in the applicable documentation provided by Vanus); (h) publicly disseminate performance information regarding the Services; or (i) use the Services other than as described in the documentation provided by Vanus, or for any unlawful purpose. Vanus reserves the right to investigate potential violations of this Agreement and the right to suspend any accounts suspected of the violation from accessing the Services as is reasonably necessary to address the potential violation.
2. Compliance. Customer will (i) be responsible for the compliance of any End Users Customer permits to use the Services with the terms of this Agreement, including keeping such End Users' login credentials confidential, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify Vanus of any such unauthorized access or use, and (iv) ensure that Customer hardware or equipment meets the minimum requirements necessary to support the installation, maintenance, use, and removal of the Services.
3. Sources and Destinations. Customer is responsible for selecting and configuring its Sources and Destinations, for any other third-party products it chooses to use with the Services and for any exchange of Customer Data it enables through the Services. Notwithstanding anything to the contrary, Vanus is not responsible for any Sources, Destinations or other third-party products used by Customer with the Services, their code or technology, or how the providers use or protect Customer Data. Customer's use of any third-party Sources, Destinations or other products is subject to its separate agreement with the provider.
4. HIPAA. Customer acknowledges that the Services are not intended to meet any legal obligations for HIPAA requirements and that, absent a validly executed Business Associate Agreement between the parties, Vanus is not a Business Associate as defined under HIPAA.
Intellectual Property
1. Customer Data. All rights, title and interest in and to any data or information or content provided, generated, transmitted, displayed or otherwise made available to Vanus via or in connection with the Services by Customer or its End Users (“Customer Data”) shall remain the sole property of Customer and/or its End Users as applicable.
2. Customer Logos and Designs. Customer shall retain all right, title and interest in and to all of Customer's logos, promotional graphics and related marketing designs (collectively, the “Customer Art”); provided, however, that Customer hereby grants to Vanus a worldwide, royalty-free, non-exclusive license to use the Customer Art, as well as Customer's corporate and/or trade name, for purposes of fulfilling its obligations hereunder and, solely as set forth on the Order Form, for the marketing of Vanus's products and services.
3. Vanus Rights. Except for the limited rights expressly granted to Customer hereunder, Vanus owns and retains all rights, title and interest in and to the Services and any related documentation as further described in the Order Form hereto, including but not limited to all copyrights, trademarks, domains, logos, trade dress, trade secrets, patents, and other intellectual property rights associated with the Services. Customer may not use Vanus's copyrights, trademarks, domains, logos, trade dress, patents, and other intellectual property rights unless Customer has Vanus's express written permission.
4. Customer License to Vanus. Vanus shall not access, use, modify, copy, store, disclose, view, adapt, transmit, publish, create derivative works of or otherwise process any Customer Data, or permit any other person to do the same, except as expressly permitted under this Agreement. Customer hereby grants to Vanus a non-exclusive, worldwide, royalty-free right to access, use, modify, copy, store, disclose, view, adapt, transmit, publish, create derivative works of or otherwise process Customer Data only for the limited purposes of (i) providing the Services and associated customer support to Customer, including exchanging Customer Data between Customer's Sources and Destinations as configured by Customer through the Services; and (ii) analyzing and improving the Services. No licenses or rights are granted to Vanus by implication or otherwise, except for the licenses and rights expressly granted to herein.
5. Usage Data. Usage Data means learnings, logs, feedback, and data regarding Customer's use of the Service, such as information on how much data is processed through the Services. Customer agrees that Usage Data will be solely owned by Vanus and Vanus will have the right to generate Usage Data which Vanus may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Vanus's products and services and to create and distribute reports and other materials), provided that Usage Data will be in an aggregated or otherwise de-identified form and will not identify Customer or its End Users.
6. Usage Rights of the Customer. Vanus grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right during the applicable subscription term to access and use the Services for Customer's internal business purposes in accordance with this Agreement. Customer may permit its employees, agents, or contractors (“End Users”) to access and use the Services through its account, provided that such End Users are using the Services on behalf of Customer in accordance with this Agreement. No licenses or rights are granted to Customer by implication or otherwise, except for the licenses and rights expressly granted herein.
7. Software. If Customer receives a license to downloadable software in connection with the Services (the “Software”), Vanus hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the applicable subscription term to install and use the Software for Customer's internal business purposes in accordance with all applicable documentation and in accordance with this Agreement, in connection with the deployment of no more than one instance of that software.
Confidentiality
1. Confidential Information. The Parties acknowledge that, in the course of performance under this Agreement, a Party (the “Disclosing Party”) may disclose, deliver or permit access by the other Party (the “Receiving Party”) to information that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential given the nature and the circumstances surrounding disclosure (“Confidential Information”). Confidential Information shall include, but shall not be limited to: proprietary technical information, know-how, inventions, techniques, applications, analyses, methods, methodology, algorithms, source codes, training models, software (including, but not limited to, the Services and its Updates) and documentations (including, but not limited to, documentations of the Services and its Updates); business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, trade secrets, methods and models; and employee, customer and supplier information. With respect to the Customer, Confidential Information also includes all Customer-Provided Data.
2. Non-Disclosure and Non-Use. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the Disclosing Party, or as required by law, the Receiving Party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the Disclosing Party. Each party agrees that Receiving party will: (i) use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement and under any applicable Order Forms, (ii) restrict access to the Disclosing Party's Confidential Information to such of its employees, personnel, agents, and/or consultants, if any, who have a need to have access to the Confidential Information and who have been advised to treat such information in accordance with the terms of this Agreement (iii) use the same care and discretion with respect to the Confidential Information received from the Disclosing Party as it uses with its own similar information, but in no event less than a reasonable degree of care.
3. Confidentiality Exclusions. The obligations set forth above shall not apply to any Confidential Information that the Receiving Party can demonstrate: (i) the Receiving Party possessed, without any obligation of confidentiality, prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of the Agreement by the Receiving Party; (iii) is or was independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (iv) is or was received by the Receiving Party from a third party that does not have an obligation of confidentiality to the Disclosing Party or its affiliates. Either Party may disclose the Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The Receiving Party may disclose Confidential Information of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding only to the extent necessary to comply with the order or other legal requirement. In such event the Receiving Party will, if lawfully permitted to do so, promptly notify the Disclosing Party within a reasonable time prior to disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures.
Representations, Warranties and Disclaimers
1. EXCEPT FOR THOSE EXPRESS WARRANTIES SET OUT IN THIS AGREEMENT, CUSTOMER AGREES THAT THE USE OF THE SERVICES IS ENTIRELY AT ITS OWN RISK; THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND (A) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW; (B) TO THE FULLEST EXTENT PERMITTED BY LAW, VANUS DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES, OR ACCESSED THROUGH ANY LINKS ON THE SERVICES; (C) VANUS DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED; (D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VANUS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. AND, (E) VANUS DISCLAIMS ANY WARRANTY THAT IT WILL REVIEW CUSTOMER-PROVIDED DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER-PROVIDED DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER-PROVIDED DATA IS SHARED WITH DESTINATIONS AT CUSTOMER'S ELECTION AND VANUS TAKES NO RESPONSIBILITY FOR ANY DESTINATION'S USE OR PROTECTION OF CUSTOMER-PROVIDED DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH DESTINATIONS AS REQUIRED BY APPLICABLE LAWS. VANUS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF VANUS. VANUS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES.
Limitation of Liability
1. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (EXCEPT IN RESPECT OF CUSTOMER'S OBLIGATION TO PAY THE FEES SET FORTH HEREIN OR IN ANY ORDER FORM). IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VANUS TOGETHER WITH ALL OF ITS AFFILIATES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES (INCLUDING THE INDEMNIFICATION CLAIMS SPECIFIED IN SECTION 10) EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE TOTAL AMOUNT CUSTOMER AND ITS AFFILIATES HAS PAID OR IS PAYABLE TO VANUS IN THE PAST THREE MONTHS. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification
1. Customer agrees to indemnify, defend and hold Vanus harmless for all third party claims, damages, and expenses that arise out of or in connection with Customer's breach of this Agreement, including any claims that Customer's use of the Services in violation of this Agreement, violates third party rights or applicable law, or if caused by Customer's gross negligence or willful misconduct.
2. Vanus agrees to indemnify, defend and hold Customer harmless for all third party claims, damages, and expenses that arise out of or in connection with Vanus's breach of this Agreement, including any claims that Customer's use of the Services as permitted by this Agreement, violates third party rights or applicable law, or if caused by Vanus's gross negligence or willful misconduct.
Miscellaneous
1. Modification of this Agreement. Vanus may update the terms and conditions of this Agreement (which may include changes pricing and plans) from time to time. The updated version of this Agreement will be available at https://www.vanus.ai/terms. Following such update, the Customer's continued use of the Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes the Customer acceptance of the updated version of this Agreement. If the Customer does not agree to the updated version of this Agreement, the Customer must stop using the Services immediately. The updated version of this Agreement supersedes all prior versions. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
2. Entire Agreement. This Agreement (together with any Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof.
3. Notices. Unless specified otherwise herein, all notices must be in writing and addressed to the attention of the other Party's primary point of contact and will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
4. Assignment. Neither Party may assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void without consent of the other party; consent shall be reasonably granted in the context of an acquisition.
5. Force Majeure. Neither party will be liable for inadequate performance or breach to the extent caused by a condition (including, but not limited to, a natural disaster, act of war or terrorism, riot, labor condition, governmental action, epidemic, pandemic and Internet disturbance) (each a “Force Majeure Event”) that was beyond the party's reasonable control. The party risking liability will utilize commercially reasonable efforts to remove or abate the effects of a Force Majeure event as soon as practicable, but if not removed or abated within fifteen (15) days, the other party may terminate this Agreement and any related Order Form without penalty by written notice. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
6. No Waiver. No delay or failure to act regarding any breach of this Agreement shall constitute a waiver of such breach or of any prior, concurrent or subsequent breach of the same or other provisions of this Agreement. No single or partial exercise of any right shall preclude any other or further exercise of such right or the exercise of any other right. Except as otherwise expressly provided herein, the observance of any provision of this Agreement may be waived (either retroactively or prospectively) only with the signed written consent of the party against whom such waiver will be enforced. Such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it has been given and shall not be deemed or constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Failure to enforce any provision of this Agreement will not constitute a waiver.
7. No Agency. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture for any purpose.
8. Severability. If one or more of the provisions in this Agreement are deemed void or unenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected.
9. Governing Law. The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of Hong Kong, without regard to conflicts of laws provisions thereof.
10. Dispute Resolution.
  1. Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this Agreement, or the interpretation, breach, termination, validity or invalidity thereof, shall be referred to arbitration upon the demand of either party to the dispute with notice (the “Arbitration Notice”) to the other.
  2. The Dispute shall be settled by arbitration in Hong Kong by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “HKIAC Rules”) in force when the Arbitration Notice is submitted in accordance with the HKIAC Rules. There shall be one (1) arbitrator. The HKIAC Council shall select the arbitrator. The arbitration shall comply with the Arbitration Ordinance Chapter 341 of the Laws of Hong Kong.
  3. The arbitral proceedings shall be conducted in Chinese. To the extent that the HKIAC Rules are in conflict with the provisions of this Section 12.4, including the provisions concerning the appointment of the arbitrators, the provisions of this Section 12.4 shall prevail.
  4. Each party to the arbitration shall cooperate with each other party to the arbitration in making full disclosure of and providing complete access to all information and documents requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.
  5. The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.
  6. Any party to the Dispute shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the arbitral tribunal.
  7. During the course of the arbitral tribunal's adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.
11. Electronic Transmission. Delivery of an executed copy of this Agreement or Order Form, by facsimile, electronic mail in portable document format (.pdf) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document has the same effect as delivery of an executed original of this Agreement or Order Form.