This Master Online Subscription Agreement governs your acquisition and use of our Incentives Online Services (the “Agreement”). By accepting this Agreement, either by clicking a box indicating your acceptance or otherwise by executing an order form that incorporates this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or any legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” as used in this Agreement shall refer to such entity and its Affiliates. If you do not have such authority or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the Incentives Online Services.
This Agreement is between Incentives Solutions Ltd (“Incentives”) and the individual or entity that has executed this Agreement (“You”). This Agreement sets forth the terms and conditions that govern orders placed by You for Online Services under this Agreement. You may not access the Online Services if you are Our direct competitor, except with Our prior written consent or for purposes of monitoring their availability, performance of functionality or for any other benchmarking or competitive purposes.
“Affiliate” means any legal entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means, for purposes of this definition, direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs.
“Online Services” means the products and services offered by Us under the name “Joopy” that are ordered by You under an Order Form and made available online by Us via password protected customer login, including related professional services. Online Services exclude Non Incentives Applications.
“Non Incentives Application” means a web-based or offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Online Services.
“Free Trial” shall mean Your use of the Services for a limited trial period of up to 30 days (or otherwise as granted) at no cost to You.
“Content” – means information obtained by Us or on our behalf from the internet or publicly available sources and provided to You pursuant to an Order Form.
“Order Form” means an ordering documents specifying the Online Services hereunder that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“User Documentation” – means Our training, help, how-to and explanatory materials and guides that assist Users in using the Online Services, as such materials nay be updated from time to time.
“Purchased Online Services” means Online Services that You or Your Affiliate purchase under an Order Form.
“User” means individuals who are authorized by You to use the Online Services, and who have been supplied user identifications and passwords by You (or by Us as Your request). Users may include but are not limited to Your employees, consultants, contractors, agents and other third parties with which You transact business.
“We”, “Us” or “Our” means Incentives Solutions Ltd directly or through any of its Affiliates.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means any electronic data, content or information submitted by You or by any of your Users on behalf of You to the Purchased Online Services or collected and processed by or behalf of You to the Purchased Online Services.
2. Free Trial
If You register on our Site for a Free Trial, We will make all or part of the Services available to You on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchase Order for a paid subscription to the Services. Additional terms and conditions may appear on the Free Trial registration web page within the Site. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. YOU MAY NOT BE ABLE TO TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL PERIOD TO A SERVICE THAT IS A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL, YOU SHOULD EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA MAY BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 11 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. Purchased Online Services
Purchased Online Services. We shall make the Purchased Online Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. The Payment will be made by You on a periodic basis, as specified in the Order Form and in accordance with the provisions set forth in section 4 below.
Subscription. Unless otherwise specified in the applicable Order Form, Online Services are purchased as subscriptions and may be accessed only in accordance with the applicable Order Forms.
Updates. We may modify the features or update the Online Service and software at any time. After a modification or update, some previously available functionality or features may change.
4. Use of the Online Services
Our Responsibilities. We shall: (a) make the Online Services available to You pursuant to this Agreement and the applicable Order Forms; (b) Provide Our standard support for the Purchased Online Services to You at no additional charge, and/or upgrade support if purchased; (c) use commercially reasonable efforts to make the Purchased Online Services available 24 hours a day, 7 days a week, other than in cases of: (i) planned downtime (of which we shall give at least 72 hours notice in advance, or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, in case of Force Majeure as specified in Section 14.1 (Force Majeure).
Our Protection of Your Data. We shall maintain administrative, technical and physical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data (b) disclose Your Data except as compelled by law in accordance with Section 7.1 (Definition of Confidential Information) or as expressly permitted in writing by You; or (c) access Your Data except to provide the Online Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
Your Responsibilities. You will: (i) be responsible for Users’ compliance with this Agreement; (ii) be responsible for the accuracy quality and legality of Your Data and of the means by which You acquired Your Data; (iii) Use commercially reasonable efforts to prevent unauthorized access to or use of the Online Services, and notify Us promptly of any such unauthorized access or use; and (iv) use the Online Services only in accordance with the User Documentation and applicable laws and government regulations. You shall not: (a) make the Online Services available to anyone other than Users; (b) sell, resell, rent, or lease the Online Services; (c) use the Online 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; (d) use the online Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Online Services or third party data contained therein; (f) attempt to gain unauthorized access to the Online Services or their related systems or networks; (g) permit direct or indirect access to or use of any Online Services or Content in a way that circumvents a contractual usage limit; (h) copy the Online Services or any part, feature, function or user interface of the Online Services; (i) copy Content except as permitted under this Agreement or in an Order Form or in the User Documentation; (j) reverse engineer any Online Services, to the extent such restriction is permitted by law. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Your Data.
Usage Limitations. The Online Services are subject to and governed by the specifications applicable to Your Order Form, and therefore may be subject to other limitations, such as, for example: (i) the online Services or the Content may be accessed by limited number of Users; (ii) each User shall have a personal password which may not be shared with any other User or any individual; and (iii) maximum daily data load of up to 10,000 transactions per day and or 3 MB per month on the Premium Joopy Version.
5. Non-Incentives Application
We or third parties may from time to time make available to You third party products or services, including but not limited to non-Incentives Applications, customization and other consulting services. We do not warrant or support non-Incentives products or services, whether or not they are designated by Us as “certified” or otherwise, except as may be specified in an Order Form.
The Online Services may contain features designed to interoperate with non-Incentives Applications. To use such features, You may be required to obtain access to such non Incentives Applications from their providers. If the provider of any such non Incentives Application ceases to make the non Incentives Application available for interoperation with the corresponding Online Services features on reasonable terms, We may cease providing such Online Services features without entitling You to any refund, credit, or other compensation.
6. Fees and payment for Purchased Online Services
Fees. You shall pay all fees specified in any and all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (a) fees are based on services and products purchased and not actual usage; (b) payment obligations are non cancelable and fees paid are non refundable; and (c) quantities ordered or purchased cannot be decreased during the subscription term stated on the Order Form. Subscription fees are based on yearly periods that begin on the subscription start date and each yearly anniversary thereof. Prices are subject to change at the beginning of any Subscription renewal.
Invoicing and Payment. You will provide Us with valid and current credit card information or with a valid purchase order or alternative document reasonably to Us. You hereby authorize Us and Our processing department to charge such credit card for all Purchased Online Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges will be made in advance, either monthly/quarterly/annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
Unpaid Fees. If any charges are not received from You by the due date, then at Our discretion, We may choose that such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in section 5.2 above.
Suspension of the Online Services and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amount You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Online Services and/or any other services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Notices), before suspending services to You.
Payment Disputes. We shall not exercise Our rights under Section 5.3 (Unpaid Fees) or 5.4 (Suspension of Online Services and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your Purchased Online Services hereunder. We are solely responsible for taxes assessable against Us by law. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. PROPRIETARY RIGHTS
Reservation of Rights in the Online Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Online Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
License to use Content and Restrictions. We grant You a worldwide limited term license under our applicable intellectual Property rights and license, to use Content purchased by You pursuant to Order Forms, Subject to the limitations set forth herein, the Order Forms and the User Documentation. Without derogating from all limitations and/or restrictions to use the Online Services as provided herein and on the Order Form or the Documentation, You shall not: (I) in the course of using the Online Services, access or use Your Data, or any Content in violation of applicable laws or applicable website terms of service; (II) permit any third party to access the Online Services except as permitted herein or in an Order Form; (III) create derivative works based on the Online Services except as permitted herein; (IV) copy, frame, or mirror any part or content of the Online Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (V) reverse engineer the Online Services; (VI) access the Online Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Online Services;
Your Data. As between You and Us, You shall own and all Your Data, as uploaded or otherwise input into the Online Services, and all retain intellectual property rights therein. We shall own any data provided through the Online Services to enrich Your Data, and all intellectual property rights therein. You grant to Us a worldwide, perpetual, non-exclusive, royalty-free license to host, copy, transmit and display Your Data and any Non Incentives Applications and program code created by or for You using the Online Services, as necessary for Us to provide the Online Services in accordance with this Agreement. This may include troubleshooting aimed at preventing, detecting and repairing problems affecting the operation of the Online Services and the improvement of features that involve the detection of, and protection against, emerging and evolving threats to the Users (such as malware or spam). We will not use Your Data or derive information from it for any advertising or other commercial purposes.
Suggestions. You grant to Us and Our Affiliates a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Online Services any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the operation of the Online Services.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Online Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans and information, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (I) is or becomes generally available to the public without breach of any obligation of confidentiality owed to the Discloser; (II) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation of confidentiality owed to the Discloser; (III) is received by the Recipient from a third party without breach of any obligation of confidentiality owed to the Discloser; or (IV) was independently developed by the Recipient with no use of the Confidential Information. Furthermore, The Recipient may disclose Confidential Information of the Discloser if it is compelled by a judicial or administrative order or decree or otherwise by law to do so, provided that the Recipient gives the Discloser, to the extent legally permitted, prior notice of such compelled disclosure and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure.
Protection of Confidential Information. The Recipient shall (I) safeguard any and all copies of the Confidential Information agains unauthorized disclosure, shall not tamper with, bypass or alter its security features or attempt to do so, (II) treat the Confidential Information with the same degree of confidentiality as it keeps its own confidential information, but in all events no less than a reasonable degree of confidentiality, (III) not use any Confidential Information of the Discloser for any purpose other than the purpose set forth in this Agreement, and (IV) except as otherwise authorized by the Discloser in writing, will limit access to Confidential Information of the Discloser to those of its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Recipient containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
9. DATA PROTECTION
10. WARRANTIES AND DISCLAIMERS
Our Warranties. We warrant that: (I) We have validly entered into this Agreement and have the legal power to do so; (II) the Online Services shall perform materially in accordance with the User Documentation; (III) subject to Section 4.2, the functionality of the Online Services will not be materially decreased during a subscription term; and (IV) The Online Services will not transmit Malicious Code to your systems. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE CONTENT IS PROVIDED “AS IS,” “AS AVAILABLE,” WITH NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party (i) alleging that the use of the Online Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event We receive information regarding a Claim Against You, or if We reasonably believe the Online Services may infringe or misappropriate or violate any applicable laws, We may in Our sole discretion (I) modify the Online Services so that they no longer infringe or misappropriate third party rights or fail to comply with any applicable law, without breaching Our warranties under “Our Warranties” above, (II) obtain a license for Your continued use of the Online Services, at no cost to You, in accordance with this Agreement, (III) terminate Your User subscriptions for such Online Services upon 30 days’ written notice and refund to You any prepaid subscription fees covering the remainder of the term of such User subscriptions after the effective date of termination, or (IV) require that You immediately, upon receipt of notice from Us, discontinue all use of any Content or Your Data that may be related to an actual or potential Claim Against You or violation of law, to the extent not prohibited by law, delete from Your systems any such Content or delete or permit Us to delete from the Online Services, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third party claimant. We shall have no obligation to indemnify You to the extent any Claim Against You arises from Content, or Your breach of the terms of this Agreement.
Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Online Services, or Content in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any and all damages, attorney fees, costs and expenses awarded against Us as a result of, or for any amounts paid by Us under a court approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense. In the event We receive information regarding an actual or potential Claim Against Us, We may, in Our discretion, require You to immediately, upon receipt of notice from Us, discontinue all use of any Content or Your Data that may be related to an actual or potential Claim Against Us and, to the extent not prohibited by law, delete from Your systems any such Content or delete or permit Us to delete from the Online Services, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third party claimant.
Exclusive Remedy. This Section 10 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
12. LIMITATION OF LIABILITY
Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $50,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED ONLINE SERVICES).
Limitation on Liability. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES OR FOR ANY, SPECIAL, INCIDENTAL, OR COVER DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. In any case of pricing increase, We will give You written notice of at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
Termination for Cause. A party may terminate this Agreement for cause: (I) upon 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.
Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
Deletion of Your Data. Upon request following termination, We will delete Your Data from the Online Services except for data held for backup or archival purposes.
Surviving Provisions. Section 5 (Fees and Payment for Purchased Online Services), 6 (Proprietary Rights), 7 (Confidentiality), 9 (Warranties and Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Deletion of Your Data), 13 (Our Details, Notices, Governing Law and Jurisdiction), and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
14. OUR DETAILS, NOTICES, GOVERNING LAW AND JURISDICTION
General. You are contracting with Incentives Solutions Ltd, a Limited Liability Company, under this Agreement, which is under the jurisdiction of the Israeli law which will apply in any lawsuit arising out of or in connection with this Agreement.
Notices. Any notices, permissions and approvals required under this Agreement shall be provided to the other party in writing and shall be deemed to have been given upon: (I) personal delivery; (II) the third business day after mailing; or (III) the following business day after sending by confirmed facsimile; To request the termination of Subscription and/or Online Services in accordance with this Agreement, You must submit a service request to Us at the address specified in Your Order Form. Billing related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Online Services system administrator designated by You
Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of Israel and You and Each party agrees to submit to the exclusive jurisdiction of and venue of the courts of London, UK.
15. GENERAL PROVISIONS
Force majeure. Neither party will be liable for any failure in performance due to beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to the Your payment obligations under this agreement.
Relationship of the Parties. The parties hereto are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect
Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid subscription fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum, or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.