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USER TERMS AND CONDITIONS

These TERMS AND CONDITIONS (these “Terms and Conditions”) are entered into between E&J New Media, LLC (“E&J”) and the client indicated on the Subscription Agreement attached hereto (the “Client”).

 

ARTICLE I
DEFINITIONS

For purposes of this Agreement, the terms below shall have the meanings defined below. Additional terms are defined in the preamble above and throughout this Agreement.

 

“Basic Leads” means all other Leads that do not include the additional data included in Premium Leads.

“Business Day” means any day other than a Saturday, Sunday or holiday on which banks are closed for business in New York, New York.

 

“Client Content” means any data, information, trademarks, logos, files, images, text or other content that may be provided by Client or its authorized users for use in conjunction with the Software or Services, including without limitation any sales leads processed by Client using the Software.

 

“Co-Brand” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give the impression that such other party has the right to display, publish, or distribute the Software or content accessible within the CRMAmplify Site.

 

“Law” means any federal, regional, state, local or other law, rule or regulation promulgated within or without the United States of America.

 

“Lead” means a single sales lead record.

 

“CRMAmplify Site” means the web site where the Software is accessed by Client, which is hosted on dedicated third party servers contracted by E&J.

 

“Premium Leads” means Leads that include consumer data, veteran status, graduate status, demographic, state, zip code, graduate, veteran, credit score, sources, DMA, overall match, positive match and credit scoring.

 

“Services” means the hosting, maintenance, support, email and other services provided by E&J pursuant to these Terms and Conditions.

 

“Software” means the “CRMAmplify” software platform.

 

”Subscription Agreement” means the subscription agreement entered into between Client and E&J setting forth the pricing, term and other terms and conditions in addition to those set forth in these Terms and Conditions for the provision of the Services and use of the Software, in the form attached hereto as Exhibit A.

 

“Subscription Fees” means the fees per Lead or package of Leads as set forth in the Subscription Agreement.

 

“Term” means the period during which the Services and access to the Software will be provided by E&J to Client, including the Initial Term and any Renewal Terms (as each is defined in Section 7.1.).

 

“User Documentation” means the E&J user documentation, if any, relating to the Software.


ARTICLE II
LICENSE

E&J grants to Client, and Client accepts, a nontransferable, nonexclusive, worldwide license and right to access the Software via the Internet and Client's own equipment and use the Software and the User Documentation only as authorized in these Terms and Conditions, for its own purpose and operations, during the Term. Client acknowledges that its access and use of the Software will be web-based or by software running in Client's computers or a mixture of both. The Software or parts of it may be provided to Subscriber in CD-ROM form (or by downloading or any other form of media) and may, in whole or part, be installed on servers or other computer equipment owned or otherwise controlled by Client. Some or all of the Software will be hosted by E&J (as described in Article III) and accessed and used by Client through the use of the Internet and Client’s computers.


ARTICLE III
ACCESSIBILITY

E&J will make the hosted portion of the Software available for Client’s use during the Term on Client’s computer systems that meet the E&J System Recommendations for the Software published at a website established by E&J, which Client acknowledges it has reviewed. E&J will provide Client with secure access to the latest supported version of the Software via the Internet from the CRMAmplify Site on a continuous basis throughout the term, except for scheduled system back-up, scheduled downtime or other on-going maintenance as required and scheduled in advance by E&J.


ARTICLE IV
LIMITATIONS

The maximum number of Client’s employees, contractors, volunteers, and other agents that are simultaneously accessing or using the Software at any given time shall not exceed the number of users specified in the Subscription Agreement. If any additional users are added beyond the amount originally agreed in the Subscription Agreement, E&J shall have the right to increase the Subscription Fees accordingly, in its sole discretion. Client’s use of the Software may not exceed the scope of the use provisions above without the express written agreement of E&J.


ARTICLE V
PERMITTED USE

Consistent with and subject to E&J’s database permissions and limitations, Client shall be permitted to use the Software and the Client Content for the purpose of prioritizing and sorting mobile sales leads in accordance with the proprietary methods utilized by the Software in accordance with applicable Law. Any other use of the Software or Client Content is prohibited.


ARTICLE VI
FEES AND PAYMENT

Client shall pay Subscription Fees during the Term in accordance with the Subscription Agreement, payable on the last Business Day of each month. Notwithstanding the foregoing, payment for a package of Premium Leads must be made in advance.


ARTICLE VII
TERM AND TERMINATION

Section 7.1 Initial Term; Renewal Terms

The Term will commence on the date set forth in the Subscription Agreement (the “Commencement Date”). The Term shall continue in effect for the period of months indicated in the Subscription Agreement (the “Initial Term”), unless sooner terminated as provided in this Agreement. Upon expiration of the Initial Term, the Term shall automatically renew for successive renewal terms of three (3) months each (each a “Renewal Term”) unless sooner terminated as provided in this Agreement, or unless either party gives written notice of termination to the other party at least ten (10) days prior to the end of the Initial Term or any Renewal Term.

Section 7.2 Termination for Breach

Notwithstanding Section 7.1, either Client or E&J may terminate the Term as a result of a material breach of these Terms and Conditions by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Client, a ten (10) day period.

Section 7.3 Effect of Termination

In the event the Term is terminated as a result of a material breach by Client prior to the completion of the Initial Term or any Renewal Term, Client shall pay E&J the estimated amount (based upon the Subscription Fees received for the three (3) months prior to such termination) of Subscription Fees owed for the entire Initial Term or, if then in effect, the entire applicable Renewal Term. Both parties acknowledge that this payment represents a reasonable estimate of E&J’s damages in the event of an early termination. In the event of termination of the Term for any reason, Client’s access to and use of the Software shall cease immediately.


ARTICLE VIII
MAINTENANCE WINDOWS

E&J and/or its hosting or telecommunications vendor(s) may perform system maintenance during the following “Maintenance Windows”, and E&J will announce all planned upgrades and outages in advance as follows:

(a) “Security Maintenance Window” – Nightly between 2:00 a.m. and 4:00 a.m. U.S. Eastern Time with twelve (12) hours advance notice for application of frequently distributed security updates as provided by operating system, network, and firewall vendors,

(b) “System Maintenance Window” – Sunday mornings between 2:00 a.m. and 7:00 a.m. U.S. Eastern Time with seventy-two (72) hours advance notice,

(c) “Upgrade Window” – Sunday morning between 12:00 a.m. and 12:00 noon U.S. Eastern Time with fifteen (15) days advance notice.

Maintenance Window start and end times specified herein may be amended to within two hours, with the same duration, provided E&J has given thirty (30) days advance notice to Client. Notifications of planned system maintenance shall be delivered to Client’s primary contact (designated per Article IX below) via electronic mail. Client acknowledges and agrees that there may be instances in which E&J needs to interrupt access to the Software without notice in order to protect the integrity of the Software or Services due to security issues, virus attacks, spam issues or other unforeseen circumstances.


ARTICLE IX
CLIENT PRIMARY CONTACT

Client shall identify, and name, an appropriate individual, with corresponding contact information, including electronic mail address, as the “Primary Contact” with whom E&J should communicate matters regarding the Software, CRMAmplify Site and Services, such as maintenance notifications, and who has the authority to make Services requests including release of Client data, both internally to E&J and to the Client, restoration of data, and other configuration changes. By default, the individual who signs the Subscription Agreement becomes the Primary Contact unless another party is specified.


ARTICLE X
CLIENT RESPONSIBILITIES

Client shall retain responsibility for administering security with respect to its users’ access to and use of the Software. Client is responsible for maintaining its user desktops and providing users network access to the Software. Client is also responsible for ensuring that its users comply with this Agreement with respect to use of the Software and Services. Client shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to Software hosted at the CRMAmplify Site. E&J shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Client in accessing the Internet to access the Software. Client shall provide adequate industry “best practice” standards to ensure reasonable security for integration between applications at the Client site and Software hosted by E&J. Client shall provide accurate input information in the manner reasonably prescribed by E&J in connection with the Software and Services provided under this Agreement. Client shall advise E&J of any changes to Client’s operations, banking relationships, Primary Contact, or other information that would require a change in the support, operation, or configuration of the hosted Software. Client shall configure necessary user accounts via the administrator account provided by E&J. Client shall be responsible for ensuring that any Client Content is accurate, not corrupt in any way, and does not contain any viruses.


ARTICLE XI
INTELLECTUAL PROPERTY RIGHTS

Section 11.1 Ownership by E&J

Client agrees that the Software, User Documentation and Services are proprietary products and services and that all right, title and interest in and to the Software, User Documentation and Services, including all associated intellectual property rights, are and shall at all times remain with E&J and its third party licensors.

Section 11.2 Protection

The Software contains trade secret and proprietary information owned by E&J or its third party licensors and is protected by United States copyright laws and international trade provisions. Client must treat the Software like any other copyrighted material and Client may not copy or distribute the Software or the User Documentation, electronically or otherwise, for any purpose. Client hereby grants to E&J a nonexclusive right to use all Client Content as necessary solely for the purposes of providing the Software and Services to Client and its authorized users pursuant to this Agreement.

Section 11.3 Client Leads

Client leads are recognized to be important confidential information belonging to the client, not to E&J, and will not in any way be disclosed to or shared with other clients.


ARTICLE XII
OTHER RESTRICTIONS

Client may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Software, Services (or any portion thereof, including without limitation any capacity) or the User Documentation, or any portions thereof, to any third party, and any attempt to do so is null and void. Client may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software. Software and Client Content shall not be used for any commercial purpose beyond the functionality driven by the Software. Client hereby agrees, represents and warrants to E&J that Client shall not access or use the CRMAmplify Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. Client will not use the Software or Services to take any actions that (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation (including those regarding export control); (iii) are defamatory, trade libelous, threatening, harassing, or obscene; (iv) constitute unauthorized entry to any machine accessible via the network, (v) Co-Brand the Software or any other E&J product with Client and/or its products and services, (vi) frame the CRMAmplify Site; or (vii) create or build any derivative works from any information, content, software, products or services obtained from or otherwise connected to the CRMAmplify Site. Client shall not interfere with or disrupt network users, services or equipment with the intent to cause an excessive or disproportionate load on E&J’s or its suppliers’ infrastructure by means of (but not limited to) distribution of unsolicited bulk emails or chain letters, viruses, Trojan horses, worms, or other similar harmful or deleterious programming routines. Client will comply with the usage policies of E&J’s suppliers, including the suppliers who host the CRMAmplify Site. Client further agrees to cooperate with E&J in causing any unauthorized use (including but not limited to co-branding, framing or hyper-linking) of the Software or CRMAmplify Site immediately to cease. Client may not obtain or attempt to obtain any materials, content, or information through any means not intentionally made available or provided for through any E&J products or services. E&J may, in its discretion, revise these service use restrictions upon thirty (30) days’ prior notice to Client.


ARTICLE XIII
REPRESENTATIONS AND WARRANTIES

Section 13.1 Mutual Representations and Warranties

Each party represents and warrants that (a) it is a validly existing and duly formed corporation, limited liability company, partnership or other entity in good standing under the laws of its jurisdiction of organizations; (b) it has the due authorization, power and authority to enter into this Agreement; (c) when fully executed by the parties, such Agreement shall be enforceable against such party in accordance with its terms, and (d) it will comply with any applicable Laws pertaining to this Agreement, the Software, the Services and the CRMAmplify Site.

Section 13.2 Disclaimers

E&J and its suppliers exercise no control whatsoever over the content of the information passing through their systems. Client and users must exercise their own due diligence before distributing and/or relying on information processed by the Software and/or uploaded to the CRMAmplify Site, and must determine that they have all necessary rights to copy, publish, or otherwise distribute such information under applicable Laws. Neither E&J nor its suppliers will be liable for any consequences of the use of any Client Data processed or generated by the Software, including without limitation any violations of the CAN-SPAM Act or any other applicable Law. E&J DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, E&J EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER E&J EXPRESSLY EXCLUDES ANY WARRANTY OF NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.


ARTICLE XIV
CONFIDENTIAL INFORMATION

Section 14.1 Definition

The term “Confidential Information” shall mean: (i) any and all information which is disclosed by E&J (“Owner”) to Client or any of its agents, representatives, consultants or designees (collectively, “Recipient”) verbally, electronically, visually, or in a written or other tangible form of any kind or nature that is not available to the public generally; and (ii) the terms, including without limitation, the pricing, of the Services and any proposals or other documents that preceded this Agreement. “Confidential Information” includes, but shall not be limited to, “know how”; trade secrets; computer programs; software; documentation; formulas; data; inventions; techniques; marketing plans; strategies; forecasts; client lists; sales leads; employee information; financial information; information concerning E&J’s business or organization, as E&J has conducted it or as E&J may conduct it in the future; and information concerning any of E&J’s past, current, or possible future products or methods, including information about E&J’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).

Section 14.2 Treatment of Confidential Information

E&J’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be used by Recipient or disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Article XIV and who have a justified business “need to know”. Recipient shall protect the deliverables resulting from Services with the same degree of care. Notwithstanding the foregoing, this Agreement imposes no obligation upon Recipient with respect to Confidential Information which Recipient can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from E&J; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to E&J and provided further that diligent efforts are undertaken to limit disclosure.

Section 14.3 Rights and Duties

The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information. Within fifteen (15) days after termination of the Term, each party shall certify in writing to the other that all copies of Confidential Information in any form, including partial copies, have been destroyed, returned, or used solely as E&J so directs.


ARTICLE XV
SUBMISSIONS AND WORK PRODUCT

Section 15.1 Submissions

Any information, materials, suggestions, ideas, comments or other information communicated by you to E&J regarding the CRMAmplify Site (but excluding, for the avoidance of doubt, any sales leads or related information delivered to the CRMAmplify Site for analysis by the Software) (the “Submission”) will not be treated as confidential, proprietary or trade secret information. Through your Submission, you hereby grant to E&J the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Submission, and to incorporate any Submission in other works in any form, media, or technology now known or later developed. E&J will not be required to treat any Submission as confidential, and may use any Submission in its business without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future E&J operations. For the avoidance of doubt, E&J will treat any information that you submit through the CRMAmplify Site as Confidential Information in accordance with the terms hereof.

Section 15.2 Work Product

Any expression or result of E&J’s Services, such as findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software (object code only), and other technical information (collectively “Work Product”) created by E&J in the course of performing the Services hereunder are the property of E&J and are licensed to Client, without further license fees, pursuant to the license in this Agreement, provided, however, Work Product does not include, and Client shall retain title to all Client Content, including without limitation all proprietary rights of Client. Client shall have no right to sublicense, transfer, assign, convey or permit any third party, to use or copy any Work Product.

Section 15.3 Modifications

Client shall not make any modifications to the Software. Any modifications that Client makes to the Software will void any warranty obligations contained in this Agreement.


ARTICLE XVI
INDEMNITY

Section 16.1 By E&J

E&J shall indemnify and defend Client against any third party claims that the Software or other Work Product (defined below) made available to Client by E&J infringe any United States or Canadian patent or copyright during the Term, provided that E&J is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim relating to infringing Software or other Work Product, E&J shall, in its reasonable judgment and at its option and expense: (i) obtain for Client the right to continue using the Software or other Work Product; (ii) replace or modify the Software or other Work Product so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if E&J determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the Term. E&J shall have no liability to indemnify and defend Client to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client; (ii) the alleged infringement is the result of a modification made by anyone other than E&J; or (iii) Client uses the Software or other Work Product other than in accordance with this Agreement or any documentation delivered by E&J. This Section 16.1 states E&J’s entire liability and Client’s sole and exclusive remedy for claims relating to infringement.

Section 16.2 By Client

Client shall indemnify and defend E&J against any claims (i) resulting from Client’s use of the Software, CRMAmplify Site, Work Product or Services; (ii) that any Client infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) arising from or relating to Client’s or its users’ failure to comply with these Terms and Conditions.

Section 16.3 Mutual Indemnity

Each party (“Indemnifying Party”) shall indemnify and hold the other party (“Indemnified Party”) harmless against any third party claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or failure to act by the Indemnifying Party, its employees or agents, while performing its obligations under these Terms and Conditions, which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defense of such action, and sole authority to defend or settle such claim.


ARTICLE XVII
LIMITATION OF LIABILITY

EXCEPT FOR THE INDEMNIFICATION FOR THIRD PARTY CLAIMS PROVIDED IN SECTION 16.3, E&J’S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT DURING THE TWO-YEAR PERIOD PRECEDING NOTICE TO E&J OF CLIENT’S LOSS. IN NO EVENT SHALL E&J BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOOD WILL, BUSINESS INTERRUPTION, COST OF COVER, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF E&J HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. E&J SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN THE EVENT OF ANY LOSS OR INTERRUPTION IN SOFTWARE ACCESS DUE TO CAUSES BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS LOSS, INTERRUPTION OR FAILURE OF TELECOMMUNICATIONS OR DIGITAL TRANSMISSIONS AND LINKS, INTERNET SLOWDOWN OR FAILURES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CLIENT.


ARTICLE XVIII
AUDIT RIGHTS

E&J shall have the right to audit Client’s use of the Software and compliance with this Agreement at Client’s premises from time to time in E&J’s sole discretion. Client agrees to permit E&J to have access to its facilities and personnel during normal business hours for the purpose of conducting such audits. In the event such audit reveals Client is exceeding the scope of use permitted by this Agreement, then E&J shall have the right to terminate this Agreement, and Client shall reimburse E&J for the costs of the audit.


ARTICLE XIX
MISCELLANEOUS

Section 19.1 Notices

All notices or other communications referenced under these Terms and Conditions shall be delivered by U.S. Mail, overnight courier, or e-mail (with read receipt) to the relevant Party at the address designated on the signature page to the Subscription Agreement, or to the address otherwise designated from time to time in writing by the Parties.

Section 19.2 Independent Contractor Status

E&J performs the Services as an independent contractor, not as an employee of Client. Nothing in these Terms and Conditions is intended to construe the existence of a partnership, joint venture, or agency relationship between Client and E&J.

Section 19.3 Governing Law

These Terms and Conditions and the Subscription Agreement shall be governed by the laws of the State of New York, excluding choice of law principles.

Section 19.4 Force Majeure

Except for Client’s obligation to pay E&J, neither party shall be liable for any failure to perform its obligations under these Terms and Conditions or the Subscription Agreement if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, epidemic or quarantine restrictions, earthquakes, riots or civil commotion, strikes, war, and restraints of government freight or other embargoes, weather conditions or any failures by E&J’s subcontractors or suppliers.

Section 19.5 Arbitration

Any disputes or claims under these Terms and Conditions or the Subscription Agreement or their breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. The arbitration shall be conducted in New York, New York in the borough of Manhattan. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, E&J may sue in any court for infringement of its proprietary or intellectual property rights.

Section 19.6 Survival

The terms and conditions of Article XI, Article XIV, Article XVI, and Article XVII shall survive the termination of the Term. If the Parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with entering into these Terms and Conditions, those separate confidentiality terms shall remain in full force to the extent they do not conflict with these Terms and Conditions.

Section 19.7 Assignment

These Terms and Conditions and the Subscription Agreement shall not be assigned by either Party without the prior written consent of the other; except that, notwithstanding anything to the contrary herein, either Party may assign its rights and delegate its obligations hereunder and thereunder in connection with a merger, acquisition, or other transfer of all or substantially all of the business, stock or assets of such Party, provided that the assignee agrees in writing to be bound by this Agreement and the Subscription Agreement. Any attempted assignment in violation of this provision shall be null and void. From and after the making of any such assignment and delegation by the assignor, the assignee shall be substituted for the assignor as a Party hereto and to the Subscription Agreement, and the assignor shall no longer be bound hereby or thereby. Subject to the foregoing, these Terms and Conditions and the Subscription Agreement shall be binding upon, inure to the benefit of, and are enforceable by the Parties hereto and their respective successors and assigns.

Section 19.8 Exclusive Remedy

Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.

Section 19.9 Severability

If any provision of these Terms and Conditions or the Subscription Agreement is held to be unenforceable, the other provisions shall nevertheless remain in full force and effect.

Section 19.10 No Waiver

The failure by either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach of these Terms and Conditions or the Subscription Agreement will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches.

Section 19.11 Entire Agreement

These Terms and Conditions, together with the Subscription Agreement, set forth the entire agreement between the Parties with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby and thereby.

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