MASTER SUBSCRIPTION AGREEMENT (MSA)

 

THIS AGREEMENT (THE “AGREEMENT“) GOVERNS YOUR USE OF OUR PRODUCTS AND/OR SERVICES. BY ACCEPTING THIS AGREEMENT AND/OR BY USING OUR PRODUCTS AND/OR SERVICES YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. 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 SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Any use of the Services is permitted only in accordance with the terms and conditions herein and for Your personal business use only.

DEFINITIONS

Breach Incident” means a breach of security leading to the accidental or unlawful distraction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.

Documentation” means written descriptions of the Service made available by Us on Our Internet website.

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.

Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.

Services” means the products and services that are ordered by You under an Order Form and made available online by Us.

 “User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password.

We,” “Us” or “Our” means DealHub Ltd.

You” or “Your” means the company or other legal entity for which You are accepting this Agreement.

Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services.

Personal Data” means any information relating to, directly or indirectly, an identified or identifiable natural person.

OUR RESPONSIBILITIES

 2.1. Provision of Services. We will (a) make the Services available to You pursuant to this Agreement, the Documentation and the applicable Order Forms, (b) provide Our standard support for the Services to You at no additional charge, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (which We shall schedule to the extent practicable during weekend hours), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.

 

2.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, availability, and integrity of Your Data in accordance with applicable law and industry standards. Those safeguards will include, but will not be limited to, security related policies and procedures, standards and practices designated for the protection of Your Data and for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) to enforce this Agreement or protect our rights hereunder, (c) as compelled by law and subject to any exclusions and condition hereunder, or (c) as You expressly permit in writing.

For the performance of Our obligations under this Agreement and for the provision of the Services as requested and instructed by You, We process Personal Data of Users – mainly contact details: name, email, phone etc. Part of the Personal Data is being provided to Us by You and some of it is being obtained directly from the User. We keep that Personal Data in order to provide the Services which involve contacting Users and sending them documents, proposals, messages, contracts, drafts etc. The Personal Data will be kept in Our systems until the end of the provision of the Services, as detailed hereunder.

In accordance with Article 28 of Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), and following the GDPR effective date (25/5/18), We undertake to:

2.2.1     process the Personal Data only on documented instructions from You;

2.2.2     not use the Personal Data for any purpose other than the strict performance of this Agreement, the enforcement of this Agreement or our rights hereunder, and the provision of the Services as requested by You. Notwithstanding the foregoing, We shall be entitled to use the Personal Data for statistical and analytical purposes, provided however that any identifying personal attributes shall be removed from the Personal Data;

2.2.3     ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

2.2.4     take all measures required pursuant to Article 32 of the GDPR, namely to implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk to the rights and freedoms of natural persons;

2.2.5     respect the conditions referred to in paragraphs 2 and 4 of Article 28 of the GDPR for engaging another Processor, namely that We may not engage another Processor (Sub-Processor) without informing You in writing of such intended change and giving You the opportunity to object to such change. In addition, the Sub-Processors We use are established in countries within the European Union or approved by an adequacy decision under Article 45 of the GDPR, or are Sub-Processors which operate under the EU-US Privacy Shield, all in accordance with the requirements of the GDPR.

2.2.6     assist You at your expense by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Your obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;

2.2.7     assist You at your expense in ensuring compliance with the obligations under Articles 32 to 36 of the GDPR, relating to the security of Processing, Personal Data Breaches and data protection impact assessments;

2.2.8     at Your choice, delete or return all the Personal Data to You after the end of the provision of Services, and delete existing copies unless applicable law requires storage of the Personal Data;

2.2.9     give You access to all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted You or another auditor mandated by You;

2.2.10   Upon becoming aware of any Breach Incident, We will notify You without undue delay, and will provide You with information relating to the Breach Incident as reasonably requested by You. We will use reasonable endeavors to assist You in mitigating, where possible, the adverse effects of any such Breach Incident.

2.3. Services. Using the Services, Users can create custom made templates, which may include Users’ logo, screenshots, graphics, videos, custom made fields, sales data (e.g., prices, discounts, deductions, taxes, clients’ information and other relevant information) and additional information. We may change the format and functionality of the Services from time to time (while making reasonable efforts not to disable any material functionality during a subscription period) and certain options may become unavailable.

 

USE OF SERVICES

 3.1 Subscriptions.  Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. The parties hereto further agree that in addition to Your Users, Your resellers, distributors and other channel partners (each a “Subscribing Party”) may purchase additional subscriptions to the Services under this Agreement by submitting an Order Form directly to Us. You will notify Us in advance of the identity of each Subscribing Party authorized to subscribe to the Services and We shall have the right at Our sole discretion to request You to remove a particular Subscribing Party and will be entitled to deny such party Services upon providing You prior notification and reasonable reasoning therefor. Any Subscription by a Subscribing Party shall be subject to all terms and conditions of this Agreement and the Subscribing Party shall have all rights and all obligations of a party to this Agreement with respect to its subscription and You will have no liability or obligation with respect to any subscriptions by such Subscribing Parties, including for any required payments.

 3.2 Usage Limits.  Services may be subject to usage limits, including, for example, the quantities specified in Order Forms.  Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned only to a new individual replacing one who no longer requires ongoing use of the Service. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. In any event, based on Our quarterly audit of active users, We will automatically bill You for any usage in excess of the contractual usage limit, and You will pay any invoice for such excess usage in accordance with Section 4.2.

 3.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly  of  any  such  unauthorized  access  or  use,  (d)  use  Services only in  accordance  with the Documentation and applicable laws and government regulations; (e) not deliver and/or provide Us with any Personal Data, unless such Personal Data has been legally obtained and transferred, including receiving the required consents or permits in compliance with applicable laws.

3.4 Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users or Your Subscription Parties, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service 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 a Service to store or transmit Malicious Code, (e) interfere with or disrupt  the integrity or performance of any  Service  or  third-party data  contained therein, (f) attempt  to  gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) access any Service or frame or mirror any part of any Service in order to build a competitive product or service, or (j) reverse engineer any Service (to the extent such restriction is permitted by law).

 

FEES AND PAYMENT FOR SERVICES

 4.1. Fees.  You will pay all fees specified in Order Forms and fees for any usage in excess of the contractual usage limit (as described in Section 3.2).  Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non- cancelable and all fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

 4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription  term  and  any  renewal  subscription  term(s)  as  set  forth  in  Section  10.2  (Term  of  Subscriptions). Such charges shall be made in advance, either 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.

 4.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

 4.4. Suspension of Service. 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 amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, suspend Our services to You until such amounts are paid in full and We reserve the right to delete all of Your Data. We will give You at least 10 days prior notice that Your account is overdue before suspending services to You and at least 90 days prior notice prior to deletion of Your Data.

 4.5. Payment Disputes. We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

 4.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees. If you are obligated under law to withhold any amounts from amounts due hereunder, you shall deduct such amounts and make payment to the applicable government authorities, and make payment of such additional amounts as may be required to cause Us to receive all amounts due hereunder as if no such withholding or deduction was made. 

 

PROPRIETARY RIGHTS AND LICENSES

 5.1. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, 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.

 5.2. License by You to Host Your Data and Applications. You grant Us a worldwide, limited-term, revocable license to host, copy, transmit and display Your Data, and any program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement and the retention period defined above. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, unless We are obligated by law to keep and store such data. In such case, Your Data will be kept and processed strictly in accordance with the requirements of the applicable law.

 5.3. License by You to Use Feedback. Nothing in this Agreement or in Our dealings arising out of or related to this Agreement shall restrict Our right to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services, even if such feedback leads Us to create any software, invention, or other asset.

 5.4. License by You to Use Logo. You grant to Us a valid license to use Your logo to list You as Our customer on Our website and Our other internal and/or marketing material.

 

CONFIDENTIALITY

6.1. Definition of Confidential Information.  Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), 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 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.

 6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its legal counsel and accountants or to potential investors and acquirers without the other party’s prior written consent, provided that a party that makes any such disclosure shall ensure that the recipient is subject to appropriate confidentiality obligations and shall be responsible for the compliance of the recipient with such obligations.

 6.3. Compelled Disclosure.  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, to the Disclosing Party in contesting such disclosure or obtaining confidential treatment for the Confidential Information. 

 

REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

 7.1. Representations and Warranties.   Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so. We represent that (a) the Services will perform in accordance with the Documentation and (b) to the best of our knowledge, none of the Services shall infringe any patent, copyright (including moral right), trade secret or other intellectual property right of any third party and that You shall be free to use them in accordance with this Agreement.

 7.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS 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. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

 7.3. No electronic services are 100% secure. Therefore, while We strive to use commercially acceptable means based on industry standards to protect Your information, We cannot guarantee its absolute security. EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOUR USE OF THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. Without derogating from the generality of the above, We shall not be liable to any mistakes or errors found in quotes or other materials produced through the use of the Services. No advice or information, whether oral or written, obtained by You from Us, shall create any warranty not expressly stated in this Agreement.

 

MUTUAL INDEMNIFICATION

 8.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (an “IP Claim”), and will indemnify You from any damages, attorney fees and costs finally awarded against You by a court of competent jurisdiction as a result of, or for amounts paid by You with respect to an IP Claim, provided You (a) promptly give Us written notice of the IP Claim, (b) give Us sole control of the defense and settlement of the IP Claim (except that We may not settle any IP Claim unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense, in defending such claim. 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 (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 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 an IP Claim arises from Your Data or Your breach of this Agreement.

 8.2. Indemnification by You. You will defend Us and 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 alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights, rights of privacy or publicity, or violates applicable law, provided that We (a) promptly give You written notice of the claim, (b) give You sole control of the defense and settlement of the claim (except that You may not settle any such claim unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense, in defending such claim.

 8.3. Exclusive Remedy. This Section 8 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 9.

 

LIMITATION OF LIABILITY

 9.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4.

 9.2. Exclusion of Indirect Damages. IN  NO  EVENT  WILL  EITHER  PARTY HAVE  ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,  COVER  OR  PUNITIVE  DAMAGES,  WHETHER  AN  ACTION  IS  IN  CONTRACT  OR  TORT  AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

TERM AND TERMINATION

 10.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

 10.2. Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form.  Except  as  otherwise  specified  in  an  Order  Form,  subscriptions  will  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 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

 10.3. Termination. 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.

 10.4. Refund or Payment upon Termination.  If this Agreement is terminated by You in accordance with Section 10.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.  If this Agreement is terminated by Us in accordance with Section 10.3, You will pay any unpaid fees covering the period through the date of termination. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

 10.5. Your Data Portability and Deletion. Upon request made by You within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download in a reasonable format to the extent required by applicable law. After that 30-day period, We will have no obligation to maintain or provide Your Data, and may thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.

 10.6. Surviving Provisions. Sections 4, 5, 6, 7, 8, 9, 10, and 11 will survive any termination or expiration of this Agreement.

 

GENERAL PROVISIONS

 11.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. We may amend this Agreement from time to time, and the revised Agreement shall be effective immediately upon our posting of the revised Agreement on our Internet webpage, provided however that we shall provide you with notice of the revised Agreement and an opportunity to terminate this Agreement upon written notice within 30 days of the posting of the revisions. If you choose to terminate the Agreement within such 30 day period, you shall not be subject to the provisions of the revised Agreement. The parties agree that any term or condition stated in Your purchase order or  in  any  other  of  Your  order  documentation  (excluding  Order  Forms)  is  void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:  (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.

 11.2. Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate (provided that the assignee agrees in writing to be bound by the assignor’s obligations hereunder and provided further that such assignment shall not relieve the assignor from its obligations hereunder) or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 11.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

 11.4. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

 11.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

 11.6. Notices. Any notices that We may be required to provide to You, whether under law or according to this Agreement, may be provided by Us to any contact information You have provided in Your account information, including through email. You expressly agree to the receipt of such communications and notices in such manner.

 11.7. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of New York, exclusive of its choice of law rules, and without regard to the United Nations Convention on the International Sales of Goods. Any dispute arising under these Terms or concerning the Service shall be finally settled by the competent courts of the State of New York. Notwithstanding the foregoing, each party hereto acknowledges that any breach by the other party under Section 6 (Confidentiality) hereof may cause irreparable harm to the other party for which damages may not be an adequate remedy and, therefore, each party may be entitled to seek all judicial relief, both at law and in equity, including, but not limited to, injunctive relief and specific performance in connection with any such breach or alleged breach of Section 6.