Bright Funds Lite Subscription Agreement
This Agreement only applies to Bright Funds Lite customers. If your organization signed an agreement with Bright Funds, that agreement may be different from the terms below.
Date Posted: November 11, 2019
This Bright Funds Lite Subscription Agreement (the “Agreement”) is between Bright Funds, Inc., a Delaware corporation (“Bright Funds”), and the entity placing an order for the Services (“Customer”). By clicking “I AGREE,” signing the Agreement for the Services, or using the Services, you enter into and agree to the terms of this Agreement. This Agreement permits Customer to purchase subscriptions to online hosting and support for software-as-a-service products from Bright Funds (the “Services”) pursuant to any Bright Funds ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions governing Bright Fund’s provision of the Services and Customer’s use thereof.
IF THE INDIVIDUAL SIGNING THIS AGREEMENT FOR USE OF THE SERVICES BY AN ORGANIZATION, THE INDIVIDUAL IS SIGNING ON BEHALF OF THE ORGANIZATION AND REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT ORGANIZATION.
- “Agreement” means this Bright Funds Lite Terms of Service Agreement.
- “Bright Funds” means Bright Funds, Inc., a Delaware corporation.
- “Confidential Information” means code, inventions, know-how, business, technical, and financial information that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure.
- “Customer Content” means the information, videos, data, and other material provided by Customer uploaded directly to or transmitted through the Bright Funds website by Customer or End Users in the course of receiving or using the Services or otherwise resulting from the use of the Services.
- “Disclosing Party” means a party to this Agreement that discloses Confidential Information to a Receiving Party.
- “Effective Date” means the effective date of this agreement, which is the earlier of (a) Customer’s initial access to the Services through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
- “End User” means the users of Customer’s account, which may include Customer’s employees, directors and consultants.
- “End User Terms” means the Bright Funds User Terms located at brightfunds.org/terms.
- “Order Form” means Bright Funds ordering documents, online registration, order descriptions or order confirmations incorporating this Agreement by reference.
- “Receiving Party” means a party to this Agreement that receives Confidential Information from a Disclosing Party.
- “Subscription Term” The term of each subscription to the Services as described in the applicable Order Form.
- “Services” means Bright Funds’ proprietary software-as-a-service products, which will be accessed by Customer via the internet and will include any updates made generally available at no additional charge to similarly situated Bright Funds customers.
- “Trial Subscription” means free access or a trial or evaluation subscription to the Service.
- “Trial Period” means the period granted by Bright Funds for the Trial Subscription.
- 2.1 Provision of Services. Bright Funds will provide hosting and support for the Services on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Customer will purchase and Bright Funds will provide the specific Services as specified in the Order Form. Bright Funds will provide the Services in a manner consistent with industry standards and in accordance with applicable laws and Government regulations.
- 2.2 Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with this Agreement and the applicable Order Form. Bright Funds will determine the time, place, methods, details and means of performing the Services. Customer will reasonably cooperate with Bright Funds in connection with the performance of the Services. Customer will be responsible for its (and, as applicable, its End Users’) compliance with the Terms of this Agreement and the End User Terms. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Bright Funds immediately of any such unauthorized access or use of which Customer becomes aware. Bright Funds bears no responsibility and will not be liable for Customer’s or its End Users’ use of the Services in violation of the terms of this Agreement. Customer will be responsible for maintaining the security of Customer’s account, passwords (including administrative and user passwords) and files, and for all uses of Customer’s account.
- 2.3 Restrictions on Use of Services. Except as expressly permitted under this Agreement or expressly set forth in an Order Form, Customer will not (and will not permit any third party to: (a) rent, lease, provide access to or sublicense the Services to any person other than its End Users; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or underlying algorithms of the Services; (d) remove or obscure any proprietary or other notices contained in the Services; (e) publicly disseminate information regarding the performance of the Services; (f) Use the services in a manner that is in violation of any applicable laws and government regulations; (g) copy the Services, modify the Services, create any derivative work based on the Services, or otherwise use the Services outside of the scope permitted under this Agreement.
- 2.4 Trial Subscription. If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for the period granted by Bright Funds (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Bright Funds has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BRIGHT FUNDS WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
- 2.5 End User Terms. Customer’s End Users are subject to the Bright Funds User Terms located at terms (“End User Terms”). In the event of a conflict or inconsistency between this Agreement and the End User Terms with respect to Customer’s or its end users’ use of the Services, this Agreement will prevail.
- 3.1 Confidential Information. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure (“Confidential Information”). The Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, will be deemed Confidential Information of Bright Funds without any marking or further designation.
- 3.2 Protection of Confidential Information. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence and not disclose any Confidential Information to third parties, and (b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than the obligations under this Agreement and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Agreement. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document that the information (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; b (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. Notwithstanding the above, Customer understands that Bright Funds is permitted to disclose Proprietary Information to certain third party service providers (such as payment processors and international distribution partners) as required in the normal course of business.
- 3.3 Compelled Disclosure. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
4) Proprietary Rights
- 4.1 License to Services. Subject to all of the terms and conditions of this Agreement, Bright Funds grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to access and use the Services solely for the purposes contemplated in this Agreement.
- 4.2 Ownership of Bright Funds Services. Customer acknowledges that it is obtaining only a limited right of use of the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no title or ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Bright Funds or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing. Further, Customer acknowledges that the Services are offered as an online, hosted solution, and that Customer has no right to obtain a copy of any of the Services. All rights not expressly granted hereunder are reserved to Bright Funds.
- 4.3 Customer Content. Subject to the terms and conditions of this Agreement, Customer grants to Bright Funds a limited, non-transferrable, worldwide license to use the information, videos, data, and other material provided by Customer uploaded directly to or transmitted through the Bright Funds website by Customer or End Users in the course of receiving or using the Services or otherwise resulting from the use of the Services (“Customer Content”) for the purpose of providing the Services. Customer represents and warrants that (a) Customer either owns the Customer Data or is otherwise permitted to grant the license set forth in this section; (b) the posting and use of Customer Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (c) the posting of Customer Content does not result in a breach of contract between Customer and any third party.
- 4.4 Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Bright Funds may collect and analyze data and other information relating to the use and performance of the Services and related systems and technologies, and Bright Funds may, during and after the of this Agreement: (a) use such information and data to improve, support and operate the Service and for any other business purpose, and (b) may use and disclose such data in aggregate or other anonymous and de-identified form for marketing or research purposes and otherwise in connection with its business.
5) Fees and Payment
- 5.1 Subscription Term. The Subscription Term of each subscription to the Services will be described in the applicable Order Form. Except as otherwise described in an Order Form, subscriptions for the Services will automatically renew for additional periods equal in length to the expiring subscription term.
- 5.2 Payment of Fees. Customer will pay Bright Funds all fees set forth on the applicable Order Form, in the currency and pursuant to the payment terms indicated on the Order Form. Customer authorizes Bright Funds to charge Customer for all applicable fees using Customer’s selected payment method. Further, Bright Funds may restrict or suspend Customer’s access to the Services if payment of any fee is not made within five (5) business days after Customer’s receipt of notice (including by email) that payment is past due. All fees are non-cancelable and nonrefundable except as expressly stated herein. Customer is solely responsible for providing Bright Funds accurate and complete billing and contact information and for notifying Bright Funds of any changes to such information. Customer acknowledges and agrees that the payment of the fees are for Bright Funds’ provision of the Services and therefore are not a tax deductible donation to Bright Funds or relevant charities.
- 5.3 Payment by Credit Card. If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
a.) Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Bright Funds (or its designee) to automatically charge Customer’s Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of the Services.
b.) Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges and that Bright Funds bears no responsibility for the assessment of any such fees.
c.) Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Bright Funds and Bright Funds may, in its sole discretion, either (a) invoice Customer directly for the deficient amount, (b) continue billing the Credit Card once it has been updated by Customer (if applicable), or (c) terminate this Agreement.
d.) Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Bright Funds will charge Customer’s Credit Card (or invoice Customer directly) for any outstanding fees for Customer’s use of the Services during the Subscription Term, after which Bright Funds will not charge Customer’s Credit Card for any additional fees.
- 5.4 Taxes. Customer will be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes except for taxes based solely on Bright Funds’ net income. If Bright Funds is required to pay any such taxes based on the licenses granted in this Agreement or on Customer’s use of the Services, then such taxes will be billed to and paid by Customer.
- 5.5 Auto-renewals. IF CUSTOMER HAS ALREADY PROVIDED A METHOD OF PAYMENT TO BRIGHT FUNDS FOR THE SERVICES, BRIGHT FUNDS MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL OF SERVICES AT THE END OF A SUBSCRIPTION TERM, UNLESS THE CUSTOMER NOTIFIES BRIGHT FUNDS THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL. Bright Funds may revise Services rates by providing the Customer at least thirty (30) days notice prior to the next charge.
6) Support and Accessibility
Bright Funds will adhere to the Service Level Agreement (“SLA”) with respect to responding to and correcting any issues with the Service.
Bright Funds agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Customer Content. However, Bright Funds will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond its control.
8) Term and Termination
- 8.1 Term of Agreement. This Agreement takes effect on the Effective Date and will remain in effect until all applicable Order Forms have expired or have been terminated.
- 8.2 Termination. This Agreement will terminate with respect to an Order Form (a) as set forth in such Order Form, (b) upon the provision by either party of written notice to the other party if the other party materially breaches the terms of the Agreement and does not cure such breach within thirty (30) days after receipt of such written notice, or (c) automatically without written notice upon: (i) the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) the other party’s making an assignment for the benefit of creditors, or (iii) the other party’s dissolution or ceasing to do business. If Customer terminates this Agreement pursuant to Section 8(b), Bright Funds will provide Customer with a prorated refund of any prepaid fees covering the period from the date of termination through the end of the Order Form term.
- 8.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Services granted to Customer under the applicable Order Form(s) will immediately terminate, and the remaining amount of the donations held by or on behalf of Bright Funds will be distributed to the relevant charities. Termination or expiration of this Agreement will not affect any other rights or obligations of the parties under this Agreement, including the payment of amounts due, which have accrued up to the date of such termination or expiration. Upon termination or expiration of this Agreement, the provisions of Sections 4, 6, 8, 9.3, 10, 11, 12 and 13 will survive and will continue in full force and effect in accordance with their terms.
- 9.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of any Order Form(s) incorporating this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of the party; (d) when any Order Form incorporating this Agreement is executed, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) it will abide by all applicable federal, state and local laws and regulations with respect to the provision and use of the Services in connection with this Agreement.
- 9.2 Bright Funds Warranties. Bright Funds further warrants that (a) the Services it provides will be provided in material conformity with the then-current specifications provided on the Bright Funds website, and (b) Bright Funds will comply with applicable laws and regulations, including, without limitation, applicable commercial fundraising statutes, (c) Bright Funds is and will remain registered and in good standing with the California Attorney General as a commercial fundraiser or other relevant distinction, as required, and (d) Bright Funds is and will remain bonded with the Registry of Charitable Trusts.
- 9.3 Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND BRIGHT FUNDS MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. BRIGHT FUNDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. BRIGHT FUNDS ASSUMES NO RESPONSIBILITY AND SPECIFICALLY DISCLAIMS LIABILITY FOR ANY ACTS OR OMISSIONS OF ANY BRIGHT FUNDS THIRD-PARTY SERVICE PROVIDERS, SUPPLIERS AND VENDORS. BRIGHT FUNDS DOES NOT WARRANT THAT THERE WILL BE NO FAILURES WITH THE SERVICE, THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS.
10) Limitation of Liability
IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FEES OWED BY CUSTOMER TO BRIGHT FUNDS PURSUANT TO THIS AGREEMENTS. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENTHIS AGREEMENT.
- 11.1 Indemnity by Bright Funds. Bright Funds will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim against Customer to the extent based on an allegation that Bright Fund’s technology was used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Bright Funds have any obligations or liability under this section arising from: (a) any unauthorized use, reproduction, or distribution of the Services or any breach of this Agreement by Customer, (b) any combination of the Services with other products, equipment, software, uses or data not supplied, authorized or recommended by Bright Funds, (c) any modification of the Services by any person other than Bright Funds or its authorized agents or contractors or (d) any activity after Bright Funds has provided Customer with a suggested modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services. If Bright Funds reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, Bright Funds will procure, at Bright Funds’ expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Bright Funds may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.
- 11.2 Indemnity by Customer. Customer will indemnify, defend, and hold harmless Bright Funds from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any Claim against Bright Funds and its Affiliates regarding Customer or Customer End Users’ use of the Services in violation of this Agreement.
- 11.3 Mutual Indemnity Obligations. Each party’s indemnity obligations are subject to the following: (a) the indemnified party will promptly provide the indemnifying party with prompt written notice once becoming aware of any claim, suit or proceeding subject to indemnification hereunder; (b) the indemnifying party will have sole control of the defense; (c) the indemnified party will provide reasonable cooperation to the indemnifying party in the defense or settlement of or investigation of any such claim, suit or proceeding; (d) The indemnified party will be entitled to participate in its own defense at its sole expense; and (e) the indemnifying party will not enter into any settlement or compromise of any such claim, suit or proceeding without the indemnified party’s prior written consent, except that the indemnifying party may without such consent enter into any settlement of a claim that resolves the claim without liability to the indemnified party and without impairment to any of the indemnified party’s rights or requiring the indemnified party to make any admission of liability. THIS SECTION STATES THE ENTIRE LIABILITY OF EITHER PARTY WITH RESPECT TO ANY THIRD PARTY INFRINGEMENT CLAIM.
- 12.1 Dispute Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures outlined in this Agreement. If a dispute is not resolved within thirty (30) days of notice, either party may bring a formal proceeding. Except as outlined below, the parties agree to resolve any claims relating to this Agreement through final and binding arbitration before a single arbiter in San Francisco, California, in accordance with the American Arbitration Association’s Commercial Arbitration Rules.
- 12.2 Injunctive Relief. Notwithstanding the above section 10.1, either party may bring a lawsuit in the federal or state courts of San Francisco County, California for injunctive relief to stop unauthorized use or abuse of the Services without first engaging in the informal dispute notice process described above. Both parties consent to venue and personal jurisdiction there.
- 12.3 No Class Actions. Customer may only resolve disputes with Bright Funds on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
- 13.1 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- 13.2 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.2 will be null and void.
- 13.3 Subcontractors. Each party will be responsible for performance of its agents and subcontractors under this Agreement
- 13.4 Governing Law; Jurisdiction. The Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles. All disputes arising out of or related to the Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California and the Parties agree and submit to the exclusive jurisdiction and venue of these courts.
- 13.5 Severability. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement remains in full force and effect.
- 13.6 Waiver and Modification. No waiver or modification of this Agreement will be valid unless made in writing and signed by authorized representatives of both parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
- 13.7 Entire Agreement. This Agreement, together with the Order Form, embodies the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both parties.
- 13.8 Notice. Any notice or communication required or permitted under this Agreement will be in writing and sent by email to email@example.com or by first class US mail or major overnight delivery services to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party.
- 13.9 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party.