Terms and Conditions

XRAY TECH, INC.

 

TERMS AND CONDITIONS

 

           These Termsand Conditions (this “Agreement”) are by and between XRay Tech, Inc., aDelaware corporation (the “Company”) and the counterparty hereto (the“Client”).  The Company and Client may bereferred to in this Agreement individually as a “Party” and together as the“Parties.”

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY TO ENSURETHAT YOU UNDERSTAND EACH PROVISION. BY ACCESSING, DOWNLOADING, USING,PURCHASING, OR SUBSCRIBING TO THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ,UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.

If you are not eligible, or do not agree to this Agreement,then you do not have our permission to use the Platform.  This Agreement applies to all visitors,users, and others who access the Platform and take effect when you click an"I Accept" button or checkbox presented with this Agreement or, ifearlier, when you use or access the Platform (the “Effective Date”).

The Company has developed a certainproprietary software-as-a-service (SaaS) product known as “XRay Team WorkflowDash” (collectively with all intellectual property rights therein, as the samemay be supplemented, modified, updated or enhanced from time to time, the“Platform”).  The Platform includes anyand all automations, API calls, webhooks, forms, templates, links, data,software, and all other functionality of any kind that is delivered through orby the Platform to the Client.  By usingor accessing the Platform, Client confirms that Client agrees to the followingterms:

1.                 SOFTWARE; SERVICE ACKNOWLEDGEMENTS AND AGREEMENTS.

 

1.1.           Software Activation and Use; License. The Company shall provideremote electronic access to the Platform. Client shall access the Platform bymeans of a client account accessed via a unique client log-in and password foreach Client User (collectively, the “Client Account”), which may be integratedwith a Client “single sign on” system. The Client Account shall be madeavailable to the Client via electronic remote access only and, other than suchclient-side object code as may be necessary for such electronic remote access,shall not be available in in executable object code form or in source codeform. Subject and conditioned on Client’s payment of all fees and payments duehereunder and Client’s compliance and performance in accordance with all otherterms and conditions of this Agreement, the Company hereby authorizes theClient to, on a limited, non-exclusive, non-assignable, non-sublicensable andnon-transferable basis (only in accordance with all of the terms and conditionsset forth in this Agreement) use the Platform during the Term through Client’sClient Account access.

 

1.2.           Client Systems. The Client shall be responsible at its own expensefor providing access to the internet in order to access the Platform. TheClient shall be responsible for ensuring that all the Client’s informationtechnology infrastructure, including computers, software, hardware, databases,electronic systems (including database management systems) and networks,whether operated directly by Client or through the use of third-party services(collectively the “Client Systems”) are free from viruses, worms, trojan horsesand other malicious code. The Client has and will retain sole control over theoperation, maintenance and management of, and all access to and use of, theClient Systems, and sole responsibility for all access to and use of thePlatform by any person by or through the Client Systems or any other meanscontrolled by Client, including any: (i) results obtained from any use of thePlatform; and (ii) conclusions, decisions or actions based on such use.

 

1.3.           Updates. The Company reserves the right in its sole discretion,but shall not be obligated, to revise, update, upgrade, edit or delete anyappearance or functions of, or any documents, information or other contentappearing on or part of, the Platform or Client Account.

 

1.4.           Security. Client shall keep all passwords and usernames to itsClient Account, as well as its operating systems (and passwords and usernamesthereto), confidential and secure, and Client shall be solely responsible forany damage caused by unauthorized access to the Client Account or its operatingsystems. Client shall not share its passwords or usernames with any otherpersons, or otherwise provide access to the Client Account to any other person.The Company is not liable for any data uploaded by the Client to the Platformor otherwise provided by the Client to the Company (for the avoidance of doubt,Client Data does not include any publicly available information or proprietarydata of Company, whether modified, transformed, or manipulated by Company or otherwise,including without limitation expertise ranking information) (the “Client Data”)or other information or data of the Client obtained by unauthorized persons dueto security breaches, Client’s negligence, or breach of this Agreement byClient, nor is the Company liable for any damage or loss of Client Data for anyreason other than Company’s willful misconduct. Client shall not undermine,damage or cause harm to the Platform, the Client Account, any other servers ofthe Company, or any other customer, client or affiliate of the Company.

 

1.5.           Personnel and Contacts.

 

1.5.1.     Company Personnel. Client shall provide to the Company telephonenumber(s) and email addresses to enable communication with an authorizedrepresentative of the Client with respect to matters pertaining to thisAgreement (and a secondary authorized representative to serve as a backup inthe event that the primary authorized representative is unavailable) who shallassist the Company in identifying, verifying and resolving technical problemswith the Client Account. Such Client authorized representative shall (i)respond promptly to any reasonable requests from the Company in connection withthe Platform, (ii) shall cooperate with Company in its performance of thePlatform, and (iii) take all necessary steps to prevent Client-caused delays inCompany’s provision of the Platform.

 

1.5.2.   Nonsolicitation ofPersonnel. Client agrees that during the Term of this Agreement and for aperiod of twelve (12) months following the termination of this Agreement forany reason, Client will not, directly or indirectly, (a) solicit, induce,recruit or encourage any of the Company’s employees, consultants or otherservice providers to terminate their relationship with the Company, or attemptto do so, whether for Client’s benefit or that of any other person or entity,or (b) solicit, divert, take away, or attempt to divert or take away, from theCompany or any of its subsidiaries or affiliates the business or patronage ofany of the customers, clients or active prospects, vendors or suppliers, orinduce or attempt to induce any such person or entity to reduce the amount ofbusiness it does with the Company or any of its subsidiaries or affiliates, andClient will not assist any other person or entity to do so.

 

1.6.           Limitation.

 

1.6.1.      Neither the Company norany employees, contractors or personnel of the Company (including thoseindividuals giving any initial or on-going training) have any liability orobligation to Client or any third-party based upon any reliance upon,application or use of any information or data or any reports furnished oractions taken as a result of Client’s use or access to the Platform.

 

1.6.2.      The Company may developand market new or different products or services, which use part or all of thePlatform, and which perform all or a part of the functions performed by thePlatform. Nothing contained in this Agreement shall give the Client any rightswith respect to any such new or different products or services.

 

1.7.           Additional Covenants. Client shall:

 

1.7.1.      comply with all of theterms and conditions of this Agreement, and the terms and conditions of thePlatform as in effect from time to time (and the Company shall have the rightto change such terms and conditions at its sole discretion), which terms and conditionsare hereby incorporated herein by reference thereto;

 

1.7.2.      not permit any thirdperson to use or gain access to the Platform (including the Client Account);

 

1.7.3.      not permit any person toreproduce, rebroadcast, copy, distribute, resell or incorporate into anyinformation retrieval system (electronic or mechanical), any information,content, form or document delivered via the Platform;

 

1.7.4.      only use the Platform(including the Client Account) for its benefit and internal use and not in theoperation of a service bureau or for the benefit of any other person or entity;

 

1.7.5.      not use the Platform(including the Client Account), in whole or in part, for any illegal, obscene,offensive or immoral purpose;

 

1.7.6.      not use the Platform(including the Client Account), in whole or in part, in any manner, or inconnection with any content, data, hardware, software or other materialsprovided by or on behalf of the Client (collectively, the “Client Materials”)that (A) infringes upon or violates any patent, copyright, trade secret,trademark, or other intellectual property right of any third party, (B)constitutes defamation, libel, invasion of privacy, or violation of any rightof publicity or other third-party right or is threatening, harassing ormalicious, or (C) violates any applicable international, federal, state orlocal law, rule, legislation, regulation or ordinance; and

 

1.7.7.      ensure that all ClientMaterials are free from viruses, worms, trojan horses and other malicious code.

 

2.                 FEES. Client shall pay all fees (the “Fees”) in accordance withthe Fees posted on the Company’s website, subject to the terms and conditionsof this Agreement. The Company reserves the right to revise the Fees at anytime in its sole discretion.  Such revisionsshall apply to Client in the next subscription period after the period forwhich Client has prepaid.

 

3.                 TERMINATION.

 

3.1.           The Company may terminate this Agreement and Client’s access tothe Platform at any time and for any reason upon notice to Client. The Companymay also suspend our provision of services to Client at any time, with orwithout cause. If the Company terminates this Agreement or Client’s access tothe Platform without cause, the Company will refund a prorated portion ofClient’s prepayment, if any. The Company will not refund or reimburse Client ifthe Company terminates this Agreement or Client’s access to the Platform forcause, including (without limitation) for a violation of this Agreement or anyAcceptable Use Policy or similar policy that we may from time to time determinein our sole discretion.  Client mayterminate this Agreement upon thirty (30) days’ notice prior to the expirationof any term of service for which Client has prepaid.  

 

3.2.           Actions Upon Termination. Upon any termination of this Agreement:

 

3.2.1.      Client shall, at its ownexpense, return to the Company any Proprietary Information of the Company inits possession and shall immediately cease using any of the Platform or ClientAccount. In connection therewith, upon the termination/expiration date of thisAgreement, or at any time thereafter, the Company shall have the right tode-activate the Client Account. For the purposes of this Agreement,“Proprietary Information” means, with respect to Proprietary Information of theCompany, confidential or proprietary information, processes and material of theCompany relating to or associated with the Platform that are conceived, made orpossessed by the Company including without limitation: plans, designs,performance specifications, marketing plans, algorithms, Intellectual Property,Intellectual Property Rights, ideas, inventions, formulas, techniques, and knowhow as well as any of the foregoing relating to the Platform and the ClientAccount (and each of their respective source codes) and the Documentation.

 

3.2.2.      Upon the terminationdate of this Agreement, or at any time thereafter, the Company shall issue aninvoice to Client indicating all amounts owing as of such termination date fromClient to the Company for any of the services rendered by the Company to Clientunder this Agreement as of such termination date.

 

3.2.3.      All rights andobligations of each Party hereunder shall terminate, subject to Section 6.13.

 

4.                 PROPRIETARY RIGHTS; CONFIDENTIALITY.

 

4.1.           Intellectual Property Rights. The Company owns and shall remainowning the Client Account, all manuals, guidelines, reports, media and otherdocumentation regarding the Platform or any Intellectual Property of theCompany which are provided in writing or electronic format by the Company tothe Client (the “Documentation”), if any, the Platform and any other software,code or configurations developed by or for the Company (collectively, the“Intellectual Property”), including without limitation all applicable rights topatents, copyrights, trademarks, trade secrets or other proprietary orintellectual property rights inherent therein or appurtenant thereto(collectively, the “Intellectual Property Rights”). Nothing in this Agreementgrants any right, title or interest in or to (including any license under) anyIntellectual Property Rights, whether expressly, by implication, estoppel orotherwise. Client shall:

 

4.1.1.      not rent, lease,sublicense, distribute, transfer, copy or modify any Intellectual Property ofthe Company or the Platform, in whole or in part;

 

4.1.2.      only use theIntellectual Property made available to Client by the Company for its ownbenefit and internal use and not for the material benefit of any other person,including on or in connection with the internet or any time-sharing, servicebureau, software as a service, cloud or other technology or service;

 

4.1.3.      not translate,decompile, or create or attempt to create, by reverse engineering or otherwise,the source code, in whole or in part, from the object code to the Platform orClient Account made available hereunder;

 

4.1.4.      not adapt any of theIntellectual Property of the Company, in whole or in part, in any way or use itto create a derivative work; and

 

4.1.5.      not remove, obscure, oralter, in whole or in part, the Company’s proprietary notices, trademarks, orother proprietary rights notices affixed or contained in or on any IntellectualProperty of the Company, including without limitation any proprietary noticesof any third party service suppliers to any of the foregoing;

 

4.1.6.      not bypass or breach anysecurity device or protection used by Platform or access or use the Platformother than by the Client Account;

 

4.1.7.      not damage, destroy,disrupt, disable, impair, interfere with or otherwise impede or harm in anymanner the Platform or the Company’s provision of services to any third party,in whole or in part;

 

4.1.8.      not remove, delete,alter or obscure any trademarks, Documentation, warranties or disclaimers, orany copyright, trademark, patent or other intellectual property or proprietaryrights notices from any Platform, including any copy thereof; and

 

4.1.9.      not access or use thePlatform for purposes of competitive analysis of the Platform, the development,provision or use of a competing software service or product or any otherpurpose that is to the Company’s detriment or commercial disadvantage.

 

4.2.           Proprietary and Confidential Information. Client (the “ReceivingParty”) agrees that all Proprietary Information of the Company (the “DisclosingParty”) which has heretofore been disclosed and which will hereafter bedisclosed to the Receiving Party, or of which the Receiving Party may otherwiseattain knowledge during the Term, in oral, written or other tangible form,shall be deemed to be confidential information and the sole property of theDisclosing Party. This Agreement shall govern all communications between theParties that are made during the Term.

 

4.2.1.      The Receiving Partyshall keep all Proprietary Information of the Disclosing Party as well as thefinancial terms of this Agreement (collectively, the “ConfidentialInformation”) strictly confidential and shall not disclose, distribute ordisseminate in any way to any third party any of the Confidential Information.Furthermore, the Receiving Party shall not utilize for the Receiving Party’sown benefit or the benefit of any third Party: (i) any Proprietary Informationof the Disclosing Party disclosed by the Disclosing Party or by any personassociated with the Disclosing Party; (ii) any Proprietary Information of theDisclosing Party of which the Receiving Party attains knowledge in connectionwith this Agreement; or (iii) any information, processes, inventions,intellectual property or the like generated by the Receiving Party based inwhole or in part on the Proprietary Information of the Disclosing Party,including, without limitation, any improvements, analyses, compilations,studies or other documents or records prepared or generated from suchProprietary Information of the Disclosing Party, which foregoing materialsshall be deemed part of the Proprietary Information of the Disclosing Party.The Receiving Party shall protect the Proprietary Information of the DisclosingParty as well as the financial terms of this Agreement by using the same degreeof care, but no less than a reasonable degree of care, to prevent theunauthorized use, dissemination or publication of such Confidential Informationas Receiving Party uses to protect its own Proprietary Information of a likenature and as it uses to protect the financial terms of this Agreement.Notwithstanding the foregoing, the Receiving Party shall have the right todisclose any financial terms of this Agreement: (x) to its legal and financialadvisors who are under a legal obligation of confidentiality or (y) to itstrustees, officers, directors, members, managers, representatives, agents andemployees, on a need-to-know basis, provided that each of the foregoing areunder a legal obligation of confidentiality.

 

4.2.2.      Notwithstanding anythingin this Agreement to the contrary, the Receiving Party may disclose theProprietary Information of the Disclosing Party as well as the financial termsof this Agreement to the extent that such disclosure is required by an order ofa court, administrative agency or governmental authority, or by any law, ruleor regulation, or by subpoena, discovery request, summons or otheradministrative or legal process, or by any formal or informal investigation byany governmental agency or authority; provided, however, that, unlessprohibited by law: (i) the Receiving Party shall give prompt written notice ofany such request or requirement to the Disclosing Party; (ii) the ReceivingParty shall give the Disclosing Party prior written notice of the ConfidentialInformation it believes it is required to disclose; and (iii) the ReceivingParty shall use its reasonable efforts to cooperate, to the extent practicable,with the Disclosing Party to avoid or minimize such disclosure or to obtainconfidential treatment thereof or other protective order.

 

4.2.3.      The Receiving Party’sobligations under this Section 4.2 shall terminate when, the Receiving Party,upon seeking to avoid the Receiving Party’s obligations hereunder, can prove byclear and convincing documentary evidence that: (i) with respect to disclosureof any financial terms of this Agreement, such financial terms have entered thepublic domain; or (ii) with respect to any Proprietary Information of theDisclosing Party, such Proprietary Information (A) was in the public domain atthe time of disclosure to Receiving Party by Disclosing Party, (B) entered thepublic domain without violation of this Agreement or any other confidentialityobligation subsequent to the time of disclosure to Receiving Party byDisclosing Party, (C) was communicated to the Receiving Party by a third party,free of any obligation of such third party to maintain the confidentiality ofsuch, or (D) was independently developed by Receiving Party using no amount ofthe Proprietary Information of the Disclosing Party. Notwithstanding theforegoing, specific information shall not be deemed to be within any of theforegoing exceptions merely because it is in the scope of more generalinformation within any such exceptions, and a combination of features shall notbe deemed to be within any such exceptions merely because individual featuresare within such exceptions.

 

4.2.4.      Use of Name. The Companymay use (a) Client’s name, (b) the name of any employee, student or agent ofClient, or (c) any trademarks, service marks or trade names owned or controlledby Client, in any sales, promotional, advertising or other publication.

 

4.2.5.       License to Client Data. Client hereby grantsto the Company a royalty-free, worldwide, non-exclusive, assignable,sublicensable and transferable license to use the Client Data and Client InputData to provide the services of the Platform to Client (and such other Partiesas the Client may direct the Company through the Platform) during theTerm.  Client acknowledges and agreesthat such use of Client Data and Client Input Data may include the disclosure,promulgation and/or transmission of Client Data and Client Input to third partyvendors or service providers of the Company.  For the purposes of this Agreement, “ClientInput Data” means information, data and other content, in any form or medium,that is collected, downloaded or otherwise received, directly or indirectlyfrom the Client by or through the Platform or that incorporates or is derivedfrom the processing of such information, data or content by or through thePlatform.

 

5.                 DISCLAIMER, LIMITATION OF LIABILITY, INDEMNITY

 

5.1.           Disclaimer. THE COMPANY MAKES NO, AND SPECIFICALLY DISCLAIMS, ANYREPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO,IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESSS FOR A PARTICULAR PURPOSE ANDTITLE), THAT THE SERVICE (IN WHOLE AND IN PART), ANY DOCUMENTATION, ANY REPORTSFURNISHED BY THE SOFTWARE TO CLIENT (IN ORAL OR WRITTEN FORM), THE SOFTWARE (INWHOLE AND IN PART), THE CLIENT ACCOUNT (IN WHOLE AND IN PART), OR ANYINTELLECTUAL PROPERTY OF THE COMPANY PROVIDED TO CLIENT, OR ANY COMPONENT OFANY OF THE FOREGOING, WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE CLIENT’SUSE OF THE CLIENT ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENTACKNOWLEDGES AND AGREES THAT: (I) THE SOFTWARE MAY REQUIRE JUDGMENTS TO BE MADETHAT ARE BASED UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; AND(II) ULTIMATE OUTCOMES COULD BE INCONSISTENT WITH THE DATA AND TRENDS DEVELOPEDBY THE SOFTWARE.

 

5.2.           Sharing of Information. THE PLATFORM IS DESIGNED TO ALLOW CLIENTTO SHARE INFORMATION WITH THIRD PARTIES THAT ALSO USE THE PLATFORM. ANYDECISIONS TO SHARE INFORMATION THROUGH THE PLATFORM WILL CAUSE THE RECIPIENT OFSUCH INFORMATION TO OBTAIN, USE, COPY AND DISTRIBUTE SUCH INFORMATION WITHOUTANY LIMITATION OF CONFIDENTIALITY, CARE OR OTHERWISE. CLIENT EXPRESSLY ASSUMESTHE RISK AND ANY ATTENDANT CONSEQUENCES OF ANY SUCH SHARING OF INFORMATIONTHROUGH THE PLATFORM. THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY ORLIABILITY OF ANY KIND WITH RESPECT TO CLIENT’S DECISION TO SHARE INFORMATIONTHROUGH THE PLATFORM, AND CLIENT EXPRESSLY ACKNOWLEDGES SUCH DISCLAIMER.

 

5.3.           Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLETO CLIENT FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, ORCONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAYCONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVENIF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. IN NOEVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS,SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT ORITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OFCONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEEDTHE FEES ACTUALLY PAID TO THE COMPANY THAT REPRESENT THREE (3) MONTHS WORTH OFFEES PAID TO COMPANY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THEFAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

5.4.           Client hereby irrevocably agree to indemnify, defend and hold theCompany, its affiliates, directors, officers, employees and agents harmlessfrom and against any and all loss, costs, damages, liabilities and expenses(including attorneys’ fees) arising out of or related to any claim arising fromor related to (i) Client’s breach or alleged breach of this Agreement, and/or(ii) Client’s Client Data.

 

6.                 MISCELLANEOUS TERMS

 

6.1.           Assignment. Client shall not assign, transfer, sublicense, orotherwise dispose of this Agreement (or any rights or benefits hereunder), inwhole or in part, or delegate is obligations under this Agreement, in whole orin part, to any other person without the prior written consent of the Company,which consent shall not be unreasonably withheld or delayed; provided that: (a)any such assignment/delegation with written consent does not release theassigning/delegating Party from any of its obligations under this Agreementunless such written consent so states; and (b) the rights of any permittedassignee hereunder shall be subject to any and all set-offs, counterclaims andother comparable rights arising hereunder. Any assignment/delegation ofrights/obligations of any of this Agreement contrary to the above shall by nulland void and of no force or effect.

 

6.2.           Governing Law; Jurisdiction Venue; Disputes. This Agreement isdeemed to have been entered in the State of Connecticut, and itsinterpretation, construction, and the remedies for enforcement or breach are tobe applied pursuant to, and in accordance with, the laws of the State ofConnecticut, without giving effect to any choice or conflict of law provisionor rule (whether of the State of Connecticut or any other jurisdiction) thatwould cause the application of the laws of any jurisdiction other than theState of Connecticut. Venue and jurisdiction for any action or claim broughtunder this Agreement shall be in the courts with proper jurisdiction located inthe State of Connecticut, and the Parties expressly submit themselves to thepersonal jurisdiction of such courts.

 

6.3.           Irreparable Harm. Each Party acknowledges that any breach of itsobligations with respect to Sections 1.5.2 and/or 4 may cause the other Partyirreparable harm or injury for which there are inadequate remedies at law andthat such other Party may be entitled to equitable relief in addition to allother remedies available to it. Each Party agrees that, if a court of competentjurisdiction determines that such Party has breached, or attempted orthreatened to breach, its obligations pursuant to Section 4, the other Partywill be entitled to obtain appropriate injunctive relief and other measuresrestraining further, attempted or threatened breaches of such obligations. Suchrelief or measures shall be in addition to, and not in lieu of, any otherrights and remedies available to such aggrieved Party.

 

6.4.           Force Majeure. The Company shall not be liable to the Client forany delay or non-performance of its obligations hereunder in the event and tothe extent that such delay or non-performance is due to a Force Majeure Event.A “Force Majeure Event” is any event beyond the control of the Company whichoccurs after the Effective Date and which was not reasonably foreseeable atthat time and whose effects are not capable of being overcome withoutreasonable expense or loss of time or both, including (without limitation) war,terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other generallabor disputes, acts of government or public authorities, natural disasters,exceptional weather conditions, breakdown or general unavailability oftransport facilities, accidents, fire, explosions and general shortages ofenergy, failures in external networks, defects or inefficiencies in Client’ssoftware, defects or inefficiencies in computer equipment or hardware ofClient, or any delay to the extent caused by the acts or omissions of Client.

 

6.5.           Binding. This Agreement shall be binding on the Parties, theiraffiliates, parents, subsidiaries, successors, and permitted assigns (if any),and each Party warrants that the undersigned representative of such Party isauthorized to execute this Agreement on behalf of such Party.

 

6.6.           Complete Understanding. This Agreement constitutes the final,complete and exclusive agreement between the Parties with respect to thesubject matter hereof, and supersedes any prior proposals, understandings andother agreements (as to all, written and oral) between the Parties relating tothe subject matter hereof.

 

6.7.           Severability. If any provision of this Agreement is held by acourt of competent jurisdiction to be contrary to law, such provision shall bechanged and interpreted so as to best accomplish the objectives of the originalprovision to the fullest extent allowed by law and the remaining provisions ofthis Agreement shall remain in full force and effect.

 

6.8.           Amendments. The Company expressly reserves the right to modifythis Agreement at any time in its sole discretion by including such alterationand/or modification in this Agreement, along with a notice of the effectivedate of such modified Agreement. If a revision meaningfully reduces Client’srights, the Company will use reasonable efforts to notify Client (by, forexample, through Client’s Client Account or in the Platform itself). To theextent Client has purchased a subscription to the Platform, the modified termswill be effective as to such subscription upon the earlier of (i) Client’s nextsubscription renewal, or (ii) Client’s acceptance of the modified Agreement byclicking “Accept” (or similar button or checkbox) at the time Client ispresented with the modified Agreement. If Client objects to the updatedAgreement, as Client’s exclusive remedy, Client may choose not to renew,including cancelling any terms set to auto-renew. In all other cases, anycontinued use by Client of the Platform after the posting of such modifiedAgreement shall be deemed to indicate Client’s irrevocable agreement to suchmodified Agreement.

 

6.9.           Independent Contractors. The Company, and its personnel,contractors and agents, in their performance under this Agreement, are actingas independent contractors and not as employees or agents of the Client. Underno circumstance will either Party have the right or authority to enter into anycontracts or assume any obligations for the other or to give any warranty ormake any representation on behalf of the other.

 

6.10.        Notices. Any notice provided pursuant to this Agreement shall bein writing and shall be deemed given (i) if by hand delivery, upon receiptthereof; (ii) if sent via electronic mail, one (1) day after confirmed emailtransmission; or (iii) if by next day delivery service, upon such delivery. Allnotices shall be addressed to the applicable Party at its respective address asmay be designated on notice to the other Party pursuant these noticeprovisions. Notwithstanding the foregoing, all billing, invoicing andcollections notices to Client may be made by electronic mail to the electronicmail address provided by Client to the Company.

                             

6.11.       Cumulative Rights and Remedies. The rights and remedies of theCompany provided for under this Agreement are neither exclusive nor mutuallyexclusive, and the Company shall be entitled to resort to any such rights andremedies, or any other remedy available to the Company at law or in equity, orsome or all in any combination, at its discretion.

 

6.12.       Rules of Usage. In this Agreement, unless a clear intentionappears otherwise: (a) the singular number includes the plural number and viceversa; (b) reference to any person includes such person’s successors andassigns but, if applicable, only if such successors and assigns are notprohibited by this Agreement, and reference to a person in a particularcapacity excludes such person in any other capacity or individually; (c)reference to any gender includes each other gender; (d) reference to anyagreement, document or instrument means such agreement, document or instrumentas amended or modified and in effect from time to time in accordance with theterms thereof; (e) reference to any law means such law as amended, modified,codified, replaced or reenacted, in whole or in part, and in effect from timeto time, including rules and regulations promulgated thereunder; (f)“hereunder,” “hereof,” “hereto,” and words of similar import shall be deemedreferences to this Agreement as a whole and not to any particular section orother provision hereof; (g) “including” (and with correlative meaning“include”) means including without limiting the generality of any description precedingsuch term; (h) “or” is used in the inclusive sense of “and/or”; (i) withrespect to the determination of any period of time, “from” means “from andincluding” and “to” means “to but excluding”; (j) references to documents,instruments or agreements shall be deemed to refer as well to all addenda,exhibits, schedules or amendments thereto; (k) references to “person” or“persons” means an individual, corporation, limited liability company,partnership, trust, joint venture or other legal entity; (l) article andsection headings herein are for convenience only and shall not affect theconstruction hereof; and (m) section and article references shall be deemed torefer to all subsections and sections thereof, unless otherwise expresslyindicated.

 

6.13.       Survival. In addition to all other provisions which expresslysurvive termination/expiration of this Agreement, or whose context requiressuch survival, the following provisions shall specifically survive terminationof this Agreement: Sections 1.5.2, 3.2, 4, 5 and 6.

 

 

Terms and Conditions