CREDIFI SUBSCRIPTION TERMS AND CONDITIONS
2 . These Subscription Terms shall be interpreted solely in the context of each Order Form that you sign which is counter-signed by us and is intended to govern your subscription to the various Services (as defined below) made available to you by Credif. In no event shall this Agreement be construed as obligating you or us until an Order Form is fully finalized and executed by both parties. In the event of a conflict between these Subscription Terms and any of the Credifi Agreements referenced in Section 1 above, these Subscription Terms shall govern your subscription (each, a “”) to the various Credifi Services.
(a) In accordance with the terms and subject to the conditions set forth in the Agreement Terms, Credfi hereby agrees to make available to you Credifi’s website, database libraries and associated data tools, and if applicable, the Credifi for SalesForce service described in Section 16 hereof (collectively, the “Services”), depending upon the Services for which you’ve elected to subscribe, as set forth in the Order Form. We reserve the right to change, amend or modify any or all of the Services at any time, and we will use reasonable efforts to notify you of any material functional changes or modifications thereto. If such a change materially diminishes the functionality of the Services, then in such case you shall be entitled to terminate this Agreement upon 10 days’ prior written notice.
(b) Without limiting the generality of Section 3(a) hereof, Credifi shall provision and make available to you various data feeds (e.g., property and loan data) via its proprietary API which are listed on your Order Form. You may expand the data feeds by submitting a change request form to Credifi therefor, and each such additional data feed will be charged at Credifi’s then-current rates in effect on the date when Credifi shall accept your change request.
(c) By ordering or renewing a Subscription, you agree to the applicable offer details for that Subscription as contained in the Documentation. You may place orders for your Authorized Users under this Agreement and grant them access to the Services, but your Authorized Users may not place orders with Credifi directly. Some offerings may permit you to modify the Services during the Term (as defined below). Notwithstanding any changes that you make to your Subscription, all rights shall terminate upon expiration of the Term.
(d) Each modification that you seek to make to the Services provided to you by Credifi shall be memorialized in change request form that is signed by both Credifi and you. No change shall go into effect before such change request is duly executed by the parties hereto. Together with the change in Fees (as defined below) that may result from changes to your Subscription, you acknowledge and agree that any and all expansions of Services that you wish to receive from Credifi will result in the Initial Term (as defined below) to re-start as of the effective date of the change request, thereby rendering all Services delivered by Credifi to you to be co-terminus.
4. . You control access by Authorized Users under your Subscription. Accordingly, you are responsible for their use of the Services in accordance with this Agreement (which includes the acceptable use provisions set forth in Section 9 hereof). As a result, you shall be responsible for any breach of this Agreement by, or caused by, any Authorized Users, and you shall indemnify and hold us harmless from and against any and all liability suffered by Credifi as a result thereof. “” for purposes of this Agreement means the parties which you’ve designated as permitted to access and use the Services and who have been issued individual Credifi usernames and passwords by us. For purposes of calculating the Fees and charges due under the Agreement, Authorized User will also include any party that may obtain and use a Credifi username and password to access the Services via any Subscription other than due to the gross negligence of Credifi.
5. . We shall provide you with introductory training on the use of the Services for a period of up to six (6) months, commencing from the start of your Subscription under the first Order Form you sign. All training will be provided free of charge, via video link, at mutually convenient times that are agreed upon by both parties. Any additional training that you may request from us which is beyond the scope of the training described in this Section will be billed at our then-current billing rates. It is your responsibility to arrange for or provide the relevant training for your Authorized Users.
6. . Together with the training that Credifi makes available to you pursuant to Section 5 hereof, Credifi also maintains a help desk accessible via phone or email for technical / account support questions. We will use reasonable efforts to respond to any support queries within one (1) business. Addition support services, including without limitation, bespoke customized research services, shall be available to you at our then-current rates in effect on the date of order.
7. You are responsible for maintaining the confidentiality of any non-public authentication credentials as well as actual usage associated with your use of the Services. Accordingly, you are responsible for the security of any and all usernames and passwords issued to you (and if applicable, to each of your Authorized Users). Lost or stolen usernames and/or passwords may be cancelled at any time upon written notice to Credifi. You must promptly notify our customer support team about any possible misuse of your account(s) or authentication credentials or any security incident related to the Services.
8. . You acknowledge that: (i) you are responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary for you and your Authorized Users to access and use the Services, and you may be unable to access or utilize some or all aspects of the Services unless such minimum technical specifications are met; and (ii) nothing in this Agreement may be interpreted as an implied license nor shall anything herein require us to deliver to you a copy of any software or other product in order to provide the Services.
(a) Unless otherwise specifically agreed to in a separate agreement between you and us, the Services and the information provided through the Services are made available to you solely for: (i) your personal use; and (ii) your internal business use, in compliance with all applicable laws, rules and regulations. You shall not: (A) resell, broker, transfer, or otherwise make available the Services and/or the information supplied therewith to any third parties other than your Authorized Users; (B) use the Services, or store the information contained therein, for the purpose of creating product(s) that compete with the Services; or (C) use the Services as a factor in
establishing an individual’s eligibility for credit, insurance, employment or for any other purposes governed by the Fair Credit Reporting Act (the foregoing (A) through
(C), collectively, the “Prohibited Uses”). You agree that if we determine or reasonably suspect that you are, directly or indirectly, engaging in any of the Prohibited Uses, or you are otherwise violating any provision of this Agreement, we may take immediate action, including termination or suspension of your account or your right to use or access the Services.
(b) You represent and warrant that you will not (i) make any Services available to, or use any Services for the benefit of, anyone other than you or your Authorized Users, unless expressly allowed otherwise in an Order Form or in our usage guides and policies, as updated from time to time (collectively, the “Documentation”); (ii) sell, resell, license, sublicense, distribute, make available, rent or lease any Services, or include any Services in a service bureau or outsourcing offering; (iii) use any Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iv) use any Services to store or transmit malicious code; (v) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein; (vi) attempt to gain unauthorized access to any Services or its related systems or networks; (vii) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of our intellectual property except as permitted under this Agreement or the Documentation; (viii) copy any Services or any part, feature, function or user interface thereof; (ix) frame or mirror any part of any Services, other than framing on your own intranets or otherwise for your own internal business purposes or as specifically permitted in the Documentation; (x) access any Services in order to build a competitive product or service; or (xi) reverse engineer any of the Services (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by you or your Authorized Users that in our judgment threatens the security, integrity or availability of the Services, may result in our immediate suspension of the Services without any liability to you therefor.
(c) We do not represent or guarantee that any of the information available through the Services (including via Credifi for SalesForce) is accurate, complete, reliable, current, free from errors, defects or harmful elements, consistent with what it purports to be, or appropriate for your needs or otherwise safe or non-objectionable. Some content available through the Services may be obtained from, or provided by, independent third party data providers and we take no responsibility for any such content. In addition, the Services may provide you with the ability to access information, material or other content from third parties, including through links to other websites and/or forums on which users or other third parties may post content. Access, viewing or use of any such third party content is made available solely at the users own risk. Such third parties shall be solely responsible and liable for all such third party content. We are not obligated to review, filter or screen any third party content at any time and we do not guarantee, attest to, verify or otherwise warrant that any third party content is or will be accurate, complete, reliable, current, free from errors, defects or harmful elements, consistent with what it purports to be, appropriate to fit your needs or otherwise safe or non-objectionable.
(d) You acknowledge and agree that the Services that we make available, including any scoring, rating, classification, and comparison data provided, are not intended to and shall not be deemed to constitute the provision of financial, business, professional, tax, or legal advice. You should consult with your advisors and counsel regarding any specific actual or proposed situation or transaction. We and our affiliates and their respective data providers offer no advice regarding the purchase, sale, holding, suitability, compliance or default of any particular property, building, loan, investment or security. You acknowledge and agree that the use of the Services, and any decisions made by you in reliance thereupon, are made solely at your own risk.
(e) In the event the Services allow you to contribute content, including by uploading data and information, posting messages, sending or sharing files and communicating with others, you agree not to post, upload, e-mail, transmit, distribute, or otherwise make available through the Services any data, text, images, files, links, software, or communications that (i) we consider, in our sole and absolute discretion, to violate any applicable laws, including without limitation the laws of the United States; (ii) restricts or inhibits any other user from using and enjoying the Services; (iii) is threatening, abusive, harassing, defamatory, obscene, offensive, harmful, obnoxious, pornographic, profane, or indecent; (iv) contains viruses, worms, Trojan horses, harmful code, or any other element or component that has a capacity or potential to interrupt, destroy, interfere with, permit the unauthorized use of, or limit the functionality of any computer software or hardware, any telecommunications equipment, or any communications network; (v) violates or infringes the rights of others, including without limitation, rights under copyright, trademark, or patent law, rights of privacy or publicity, rights under defamation law, or rights under any securities or other applicable law; (vi) sells or promotes any product or service; (vii) promotes, solicits, or partakes in any multi-level marketing or pyramid scheme; (viii) posts or transmits any unsolicited advertising, or promotional materials (spam); or (ix) provides a false identity or claim a relationship between you and any business, organization, or person for which you are not authorized or legally permitted to claim.
(a) Subject to the limited rights expressly granted in this Agreement, we and our licensors and content providers reserve all of our/their rights, title and interest in and to the Services, including all of our/their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
(b) You grant us and our applicable contractors a worldwide, limited-term license to host, copy, transmit and display your data and program code created by or for you using the Services or for use by you in connection with the Services, as reasonably necessary for us to provide the Services in accordance with this Agreement. You grant us a worldwide right and license to list or otherwise utilize your name, brand, logo or other identifying mark(s) in any and all of our marketing and sales presentation materials. Without limiting the generality of the foregoing, we also reserve the right to use you as a reference for prospective subscribers of our Services. Subject to the limited licenses granted herein, we acquire no rights, title or interest from you under this Agreement in or to any of your data or such program code.
11. . We reserve the right to audit (at least once annually and in accordance with our standard procedures, which may include on-site and/or remote audit) your (and any Authorized Users’) usage of the Services. You shall cooperate reasonably in the conduct of such audits. In the event an audit reveals that you and/or your Authorized Users have used the Services in excess of the quantities or levels provided in your Subscription, you shall pay such underpaid Fees and/or for such excess usage based on our then-current price list. Reasonable costs of our audit shall be paid by you upon the occurrence of the foregoing.
12. . You shall pay to Credifi the applicable fees (e.g., Services fees, Credifi for SalesForce fees, support fees, database library access fees, etc.) (collectively, the “”) as specified in each Order Form (as well as any additional/ancillary fees to which you shall become obligated as a result of changes made to any Subscription as in effect from time to time). All Fees for the Services shall be due and payable in advance, with payment due on Net 10 day terms from the date of the applicable Order Form. Unless the parties expressly agree otherwise in writing, Credifi reserves the right to suspend the provisioning of any Services until payment of Fees due and owing to Credifi are remitted in full. All payments shall be made in US Dollars pursuant to the payment instructions on the applicable Order Form. Late payments shall accrue interest at the rate of fourteen percent (14%) per annum or at the highest percent per annum as allowed under applicable law. Your obligation to pay invoiced amounts is absolute and unconditional and not subject to any refund, offset, defense or counterclaim. We reserve the right to change our fees and charges, at any time, upon thirty (30) days’ prior written notice to you. In the event you do not wish to be billed pursuant to the updated fee schedule, you shall have the right to terminate the affected Services by notifying us prior to the end of the calendar month following which you wish to terminate the Subscription. In the absence of such termination, the new rates shall go into effect and apply to any Subscription you have in effect at that time.
13. . Fees and other charges described in this Agreement do not include sales, VAT, withholding, use, property, excise, service, or other applicable taxes now or hereafter levied, all of which shall be your sole responsibility. If we are required to pay any of the foregoing, you shall be invoiced for and required to reimburse us for such amounts.
(a) “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or proprietary or that should be reasonably understood to be confidential or proprietary given the nature of the information and the circumstances of disclosure. Your Confidential Information includes your data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
(b) The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those contained herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate(s), legal counsel or accountants will remain responsible for such third party’s compliance with this “Confidentiality” Section. Notwithstanding the foregoing, we may disclose the terms of this Agreement and any applicable Order Form to any of our subcontractors to the extent necessary to perform our obligations to you under this Agreement, under confidentiality terms which are as materially protective as those set forth herein.
(c) The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
15. . Credifi shall make good faith, commercially reasonable efforts to undertake and maintain reasonable and industry-standard security measures to protect the security, confidentiality and integrity of your data and other proprietary information transmitted through or stored via the Services.
(b) You: (i) are responsible for all usage of Credifi for SalesForce whether by you and/or by any of your Authorized Users; (ii) shall undertake commercially reasonable efforts to prevent unauthorized access to, or use of, Credifi for Salesforce by any third party that/who is not an Authorized User, and you shall notify Credifi promptly of any such unauthorized use of which you become aware or otherwise suspect; (iii) shall use Credifi for Salesforce solely for your internal business purposes and shall not: (A) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make Credifi for Salesforce or the SalesForce service (the “SF Service”) available to any third party, other than to Authorized Users; (B) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (C) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (D) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (E) interfere with or disrupt the integrity or performance of Credifi for SalesForce or the SF Services or the data contained therein; or (F) attempt to gain unauthorized access to Credifi for SalesForce or the SF Service or its related systems or networks; (iv) modify, copy or create derivative works based on Credifi for SalesForce or the SF Service; (v) frame or mirror any content forming part of Credifi for SalesForce or the SF Service, other than on your own intranets or otherwise for your own internal business purposes; (vi) reverse engineer Credifi for SalesForce or the SF Service; or (vii) access Credifi for SalesForce or the SF Service in order to (y) build a competitive product or service, or (z) copy any ideas, features, functions or graphics of Credifi for Salesforce or the SF Service.
(c) Notwithstanding anything in this Agreement to the contrary, you shall have no recourse whatsoever against Salesforce.com, Inc. and/or any of its affiliates in connection with or arising from your use or inability to use Credifi for SalesForce. In consideration of the rights granted to you under this Agreement (including without limitation, the right to use Credifi for SalesForce), you expressly and irrevocably release SalesForce of any lability pursuant to this Agreement.
(a) We warrant that during an applicable Term (i) this Agreement, the Order Form(s) and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data; (ii) we will not materially decrease the overall security of the Services; (iii) the Services will perform materially in accordance with the applicable Documentation; and (iv) we will not materially decrease the overall functionality of the Services. For any breach of a warranty above, your exclusive remedies are those described in the “Termination” section below.
(b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO ADDITIONAL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE ALSO DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. Without limiting the foregoing, the provisions set forth in this Section 17 shall apply equally to the Services as well as Credifi for SalesForce, and the warranties set forth above are the maximum warranties offered by us in regards to Credifi for SalesForce.
18. . IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES” SECTION ABOVE. IN ADDITION, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
(a) We will defend and indemnify you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that any of the Services infringe or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and we will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim Against You; provided you (i) promptly give us written notice of the Claim Against You; (ii) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability); and (iii) give us all reasonable assistance in our defense and settlement thereof, at our expense. If we receive information about an infringement or misappropriation claim related to a Service, we may in our discretion and at no cost to you (x) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching our warranties hereunder; (y) obtain a license for your continued use of that element of the Services in accordance with this Agreement; or (z) terminate your Subscription for the infringing Services upon thirty (30) days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim against you arises from your gross negligence, fraud willful misconduct and/or use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
(b) You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that any of your data infringes or misappropriates such third party’s intellectual property rights, or arising from your use of the Services in violation of this Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Us”), and you will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim Against Us, provided we (i) promptly give you written notice of the Claim Against Us; (ii) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability); and (iii) give you all reasonable assistance in your defense and settlement thereof, at your expense.
(c) This Section states each indemnifying party’s sole liability to, and each indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
20. . The term of this Agreement shall commence on the date set forth on your Order Form and continue for twelve (12) months (the “”). This Agreement shall renew automatically for additional and successive periods of twelve (12) months thereafter, and together with the Initial Term, collectively, the “ ”) unless either party terminates this Agreement pursuant to the terms herein. Except as set forth herein, including without limitation our termination rights under Section 8, this Agreement may not be terminated during the Initial Term.
(a) A party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(b) Effective immediately upon the termination of this Agreement, (i) you shall cease, and shall direct your Authorized Uses to cease, use of the Services; (ii) all licenses granted under this Agreement will become void; and (iii) neither party hereto will have continuing rights to use any Confidential Information of the other party. To the extent Credifi deems necessary in its sole discretion, it shall have the right to suspend or terminate your access to the Services following the termination of this Agreement. As soon as can reasonably be accomplished following the termination hereof, each party will discontinue its use of, and will return, the Confidential Information and proprietary materials of the other party which are in its possession.
(c) If this Agreement is terminated by you in accordance with this Section, we will refund you any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by us in accordance with Sections 8 or 21(a), you will pay any and all unpaid Fees covering the remainder of the Term. In no event will termination relieve your obligation to pay any Fees payable to us for the period prior to the effective date of termination.
(d)The following provisions hereunder shall survive any termination of this Agreement: 4 (Authorized Users); 7 (Responsibility for Your Account); 8 (User Obligations); 9 (Usage Restrictions); 10 (Proprietary Rights & Licenses); 11 (Verification); 12 (Fees); 13 (Taxes); 14 (Confidentiality); 17(b) (Warranties); 18 (Limitation of Liability); 19 (Indemnification); 21 (Termination); and 22 (Miscellaneous).
(a) Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by certified mail, postage prepaid, to the Parties at their respective addresses set forth on the Signature Page, or addressed to such other address as the receiving Party may provide by written notice to the other party in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile or electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either party delivers any notice by means of facsimile or email transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
(b) Force Majeure. Except for payments owed to us, if a party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of God, war, natural disaster and other events beyond all reasonable control of the non-performing party.
(c) Assignment; Delegation. This Agreement shall be binding and inure to our mutual benefits and each of our respective successors and assigns. You shall not assign any of your rights or delegate any of your duties under this Agreement without our express prior written consent, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
(d) No Third Party Beneficiaries. The covenants set forth in this Agreement are intended solely for the benefit of the parties hereto, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
(e) Governing Law; Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK. To that end, each party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court; (ii) claim that the proceedings have been brought in an inconvenient forum; and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such party. To the fullest extent permitted by law, each party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.
(f) Enforceability. Even if the law will not enforce a provision of this Agreement in a particular instance, the parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.
(g) No Waiver. Even if a party fails to enforce its rights under this Agreement in a particular instance, the other party must still perform its duties in that instance unless the non-enforcing party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.
(h) Entire Agreement; Amendment. The parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that these Subscription Terms address, including the parties’ respective confidentiality obligations. The parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force. Notwithstanding any provision in this Agreement to the contrary, we reserve the right, in our sole and absolute discretion, at any time and from time to time, to change, amend, or modify this Agreement. Not less than ten (10) days’ prior to any such change, amendment or modification going to effect, we will notify you via email and/or through other electric communication means thereof, and you have ten (10) days thereafter to notify us in writing of any objections thereto, whereupon the parties shall negotiate to resolve the same in good faith. Failure to provide us with such notice of objection within ten (10) days following the date of our notice of any such amendment, modification or change shall be deemed as your acceptance thereof and constitutes your agreement to follow and be bound by the terms of this Agreement, as amended.
LAST UPDATED: November 2018