BRAND ACCESS AGREEMENT
This Brand Access Agreement is between Postie, Inc. (“Postie”) and the corporation, limited liability company, partnership, sole proprietorship, or other business entity on whose behalf you enter into this Agreement (“Brand”) and governs Postie’s provision of its technology-enabled direct mail marketing services (“Services”), which include access to a hosted software platform (the “Platform”) and distribution of advertising campaigns (“Campaigns”).
BY CLICKING “AGREE AND CONTINUE,” YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND BRAND TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR BRAND DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO CLICK “AGREE AND CONTINUE.”
Background
Postie works with retailers to allow their brands to advertise using the retailer’s first-party shopper data.
One such retailer (“Retailer”) has entered into an agreement with Postie (the “Retailer Agreement”) pursuant to which Postie provides certain Services to Retailer’s brands, where and as authorized by Retailer.
Retailer has authorized Brand to access and use, and Postie to provide, the Services.
Brand desires to access and use the Services and Postie is willing to provide the Services to Brand pursuant to the terms of this Agreement.
In consideration of the foregoing premises and the mutual promises, covenants, and conditions hereinafter set forth, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
Agreement
1. Definitions. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.
2. Term. This Agreement begins on the date Brand’s representative clicks to “Agree and Continue” (the “Effective Date”)and will continue in effect so long as the Retailer Agreement, unless terminated as set forth herein (the “Term”).
3. Postie Services.
3.1 Platform Access. Subject to the terms and conditions of this Agreement, Postie hereby grants Brand the right to access and use those features and functionality of the Platform authorized by Retailer, during the Term, to approve and manage Postie’s distribution of Brand’s Campaigns to Retailer Audiences. Access to and use of the Platform will be through an account on the Platform provided for Brand (“Account”). Brand will be permitted to authorize its employees and contractors to access the Platform under Brand’s Account (“Users”). Brand will designate a User as the administrator of Brand’s Account (the “Admin”). Until an Admin is designated by Brand, the Admin will be the first User added to Brand’s Account. Brand may allow its Users to access and use the Platform solely under Brand’s Account for purposes of exercising the rights granted to Brand under this Agreement. Brand will ensure that all information about each User provided to Postie is and remains accurate and complete. Brand will advise Users of the restrictions set forth in this Agreement and will be solely responsible for all acts and omissions of its Users just as if each were “Brand” under this Agreement. Brand will implement commercially reasonable measures to protect the security and confidentiality of all User credentials associated with Brand’s Account and to prevent unauthorized access to or use of the Platform through any User credentials. Brand will notify Postie promptly of any such unauthorized access or use of the Platform or if any User credentials are lost, stolen, or otherwise compromised.
3.2 Campaign Distribution. Prior to a Campaign’s distribution, Brand and Retailer will receive a hard proof of Brand’s direct mail advertisements (each an “Ad”), including the marketing creative comprising such Ads. Brand and Retailer must each approve the Ads, including the look and feel of all marketing creative, prior to Campaign distribution. Following approval by Brand and Retailer, the Campaign is non-cancellable and, provided that Brand has paid all applicable Fees hereunder, Postie will distribute the Campaign.
3.3 Pixel. While performing the Services for Brand, to the extent authorized by Brand, Postie may obtain Personal Data (as defined in the Postie Data Processing Addendum available at www.postie.com/DPA (the “DPA”)) from Brand’s Website through Postie’s tracking pixel (“Pixel”) or other Brand selected integration. Postie shall safeguard Personal Data in accordance with the DPA and will not access or use such Personal Data other than as necessary to perform its obligations or exercise its rights under this Agreement. Brand will not provide Postie with any other Personal Data under this Agreement.
4. Brand Responsibilities. As between Brand and Postie, Brand is solely responsible for: (a) any Brand website (the “Brand Website”) and any other website to which an Ad directs its targeted recipients; (b) products and services advertised in the Ads or on the Brand Website, and any other Brand products and/or services; and (c) providing for and maintaining any systems, software, hardware, web browser, and Internet service necessary to access and use the Services.
5. Fees and Payment. Brand shall pay Postie all fees that Brand has agreed to in insertion orders referencing this Agreement (“Fees”) prior to Postie’s deployment of the applicable Campaign, unless otherwise agreed in writing by the parties. Postie shall not be liable for any delay in Campaign deployment caused by Brand’s late payment. Except as set forth herein, all Fees are non-refundable once paid. Amounts not paid when due will be subject to a late charge of 1.5% per month or any applicable legal maximum, whichever is less. Brand agrees to pay any taxes and other fees and charges imposed by any government entity on Brand’s use of the Services or arising from this Agreement, excluding taxes based on Postie’s net income.
6. Postie Technology. Brand acknowledges that the Services, including the Platform, Pixel, and all software, hardware, data, datasets, information, all other technology used by or on behalf of Postie to provide the foregoing, and any updates, upgrades, new versions, modifications, or enhancements to any of the foregoing (collectively the “Postie Technology”), constitute the valuable IPR of Postie. As an express condition to the rights granted to Brand under this Agreement, and in addition to the other conditions in this Agreement, Brand will not and will not permit any third party to: (1) use or access any Postie Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any Postie Technology; (3) sublicense, distribute, sell, rent, lend, loan, lease, convey, sublicense, assign, pledge, or otherwise transfer or in any way encumber any Postie Technology or any portion thereof; (4) use any Postie Technology for the benefit of any third party other than Retailer or make any Postie Technology available to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any Postie Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Postie Technology; (7) access or utilize any Postie Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any Postie Technology or attempt to gain unauthorized access to any Postie Technology; (9) alter, obscure, or remove any copyright notice, copyright management information, or proprietary legend contained in or on any Postie Technology; (10) access or use the Postie Technology or any component thereof in order to build a competitive product or service; or (11) use the Postie Technology to distribute fraudulent, deceptive, false, or misleading Ads. All use of all Postie Technology will be in accordance with any documentation for the applicable Postie Technology provided by Postie. As used in this Agreement, “IPR” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information. Postie and its licensors own and will continue to retain all right, title, and interest in and relating to the Postie Technology and all IPR therein and relating thereto. Except as set forth in this Agreement, Brand is granted no licenses or rights in or to any Postie Technology, or any IPR therein or related thereto.
7.1 Termination. This Agreement may be terminated by either party upon notice to the other party if (a) the other party materially breaches any provision of this Agreement and fails to cure such breach within 30 days after receiving notice of the breach from the non-breaching party, or (b) Retailer withdraws its authorization for Brand to use the Postie Services as set forth in this Agreement or the Retailer Agreement is terminated or expires.
7.2 Effect of Termination. Termination of this Agreement will not relieve either party of any rights or obligations under any insertion orders entered into prior to termination. Upon any expiration or termination of this Agreement: (a) all Fees owed under this Agreement prior to such expiration or termination will be immediately due and payable (including, at minimum, the Fees due under this Agreement pro-rated based on Services provided by Postie prior to expiration or termination and any Fees attributable to non-cancelable commitments entered into by Postie prior to such expiration or termination); (b) Postie will complete its distribution of any Campaigns in accordance with insertion orders entered into by the parties; (c) except as otherwise provided in subpart ‘(b)’: Postie may cease providing all Services under this Agreement; (d) all rights and licenses granted to Brand with respect to any Services will terminate and Brand will cease all access to and use of the Services; and (e) except as may be expressly permitted under this Agreement, each party will return to the other party or, at the option of the other party, permanently destroy any Confidential Information of the other party in such party’s possession or control. At the request of the other party, each party will certify in writing to its compliance with this Section.
7.3 Survival. The following Sections will survive expiration or termination of this Agreement for any reason: 1(Definitions), 5 (Fees and Payment), 6 (Postie Technology), 7 (Termination and Effect), 10 (Disclaimer), 11(Indemnification), 12 (Limitation of Liability), 13 (Confidentiality), 15 (Dispute Resolution), 16 (Choice of Laws; Venue), 17(Irreparable Harm), 18 (Notices), and 19 (Additional Terms).
8. Suspension or Discontinuation. Postie reserves the right to immediately suspend Brand’s access to the Platform whereRetailer is past due on any payment obligation under the Retailer Agreement. Additionally, Postie reserves the right to immediately suspend Brand’s access to the Services where Postie reasonably believes that Brand’s use of the Services may be in violation of this Agreement or applicable Law or presents a risk of harm, loss, or liability to Postie or any other customer or third party. In such cases, without limiting its obligations under subsection ‘(1)’ of the preceding sentence, Postie will use commercially reasonable efforts to (a) limit the extent and duration of any suspension, (b) notify Brand of any suspension (in advance if possible), and (c) reinstate any suspended Services as soon as possible.
9. Representations, Warranties, and Covenants.
9.1 General. Each party represents, warrants, and covenants to the other party that: (a) such party has full power and authority to enter into this Agreement; (b) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (c) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms.
9.2 Compliance. Each party represents, warrants, and covenants to the other party that: (a) such party will comply with all laws, rules, and regulations applicable to such party in connection with such party’s performance under this Agreement, including all data privacy and security laws (“Laws”); and (b) such party’s performance under this Agreementwill not cause the other party to violate any Laws applicable to such party.
9.3 Services. During the term of this Agreement, Postie will use commercially reasonable efforts to provide the Services. As Brand’s sole remedy, and Postie’s sole obligation, for any failure by Postie to comply with the foregoing sentence, Postie will at its option: (a) correct, re-perform, or re-provide the applicable Services; or (b) credit Brand the portion of any Fees actually paid for the applicable Services. This limited warranty will not apply to Ads or Campaigns that Brand has reviewed and approved through its Account on the Platform or to the extent the nonconformity was caused by Brand’s abuse or misuse of the Services. To receive the foregoing remedies, Brand must notify Postie in writing of the non-conformity within 30 days after Postie provides the applicable Services.
9.4 By Postie. Postie represents, warrants, and covenants to Brand that the Retailer Agreement requires Retailer to (a) maintain all necessary consents, permissions, and rights necessary to provide Postie with any Retailer Audiences, and for Postie to use such Retailer Audiences as permitted under this Agreement and (b) warrant that the sending of a Campaign to a Retailer Audience will not violate Retailer’s privacy policy, terms of service, or the privacy rights of any consumer.
9.5 By Brand. Brand represents, warrants, and covenants to Postie that (a) Brand has and will maintain all necessary consents, permissions, and rights necessary to (a) install the Pixel on the Brand Website as contemplated by this Agreement; and (b) for Postie to use Personal Data (as defined in the DPA) collected through the Pixel as permitted under this Agreement.
10. Disclaimer. EACH PARTY ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL POSTIE TECHNOLOGY IS PROVIDED BY POSTIE AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND. POSTIEEXPRESSLY DISCLAIMS, AND BRAND DISCLAIMS ANY RELIANCE ON, ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT ORANY SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS UNLESS CONFIRMED IN WRITING BY SUCH PARTY AS AN AMENDMENT TO THIS AGREEMENT.
11.1 By Brand. Brand will defend, indemnify, and hold harmless Postie, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all losses, liabilities, costs, judgments, awards, settlements, penalties, damages, fines, expenses, costs, and fees (including reasonable attorneys’ fees and costs of collection) (“Losses”) incurred in connection with any claim, allegation, action, or suit (“Claims”) brought against any of them by a third party insofar as the Claim arises out of or relates to (a) the Brand Website; or (b) Brand’s Ads, products, services, or other offerings.
11.2 By Postie. Postie will defend, indemnify, and hold harmless Brand, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all Losses incurred in connection with any Claims brought against any of them by a third party insofar as the Claim arises out of or relates to the Services or Brand’s permitted use of the Services infringing, misappropriating, or violating the third party’s IPR. Should any Claim relating to the Services infringing, misappropriating, or violating a third party’s IPR be made, or in Postie’s reasonable opinion be likely to be made, in addition to Postie’s indemnification obligations under this Section, Postie may, at its option and expense: (a) procure for Brand the right to continue using the applicable Services; (b) replace or modify the applicable Services so as to no longer infringe; or (c) terminate the applicable Order, Retailer Order, and/or this Agreement. Postie’s obligations under this Section will not extend to, and Postie shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (i) failure by Brand to comply with the terms of this Agreement or any documentation or instructions provided by Postie; (ii) the Brand Website; (iii) any specifications or instructions provided by Brand or Retailer; (iv) any additions, changes, or modifications to the Postie Technology, unless provided by Postie; (v) any products, services, or other offerings not provided by Postie; or (vi) any systems, networks, databases, hardware, and software provided under any license or agreement other than this Agreement. THIS SECTION STATES BRAND’S SOLE AND EXCLUSIVE REMEDY AND POSTIE’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND/OR THE SERVICES.
11.3 Conditions. As a condition to obtaining indemnification from the other party under this Section, each party will: (a) give the other party prompt notice of any claim for indemnification, provided however that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that such indemnifying party is materially prejudiced by such failure; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings, provided that any settlement that involves more than the payment of money and a full release of the indemnified party will require the indemnified party’s written consent; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim for indemnification. Notwithstanding the foregoing, the indemnified party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such party’s expense through counsel of such party’s choice.
12. Limitation of Liability. IN NO EVENT WILL POSTIE, RETAILER, OR BRAND BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF PROFIT, REVENUE, BUSINESS INTERRUPTION, TIME OPPORTUNITY, COST TO PROCURE SUBSTITUTE SERVICES, OR GOODWILL. THE TOTAL CUMULATIVE LIABILITY OF POSTIE, RETAILER, AND BRAND UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE FEES PAID BY BRAND TO POSTIE IN THE 3–MONTH PRECEDING THE LIABILITY (THE “LIABILITY CAP”); PROVIDED THAT THE TOTAL CUMPLATIVE LIABILITY OF EACH OF POSTIE AND BRAND FOR ANY OBLIGATIONS UNDER SECTION 11(INDEMNIFICATION) SHALL BE LIMITED TO THE LESSER OF TWO TIMES THE LIABILITY CAP OR $200,000. BRAND ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF POSTIE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Confidentiality. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose Discloser’s Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. If Brandprovides any feedback, comments, or ideas to Postie regarding the Services or Postie Technology, or improvements thereto, Brand agrees that Postie will be free to use, disclose, and exercise any rights in the same in connection with its products and services with no financial, credit, confidentiality, or other obligation to Brand. Upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all of Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section 13 shall continue for 3 years after the expiration or termination of this Agreement, except that such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable Laws.
14. Export. Unless otherwise agreed by the parties in writing, the Services are provided only in the U.S. Any use of the Services outside the U.S. may be subject to U.S. export control Laws and may be subject to export or import regulations in other countries. Brand agrees to strictly comply with all such Laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required.
15. Dispute Resolution. The parties agree that any Dispute that may arise between them will be resolved exclusively in accordance with the provisions of this Section 15. Except as otherwise provided in Section 17, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 17 (Irreparable Harm), if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration by JAMS under its Streamlined Arbitration Rules and Procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be confidential and, except as necessary to enforce a judgement or otherwise required by applicable Law, neither party, nor the arbitrator, will disclose any materials produced, disclosed, or generated in relation to the arbitration or the fact that the parties are engaged in a Dispute. The arbitration will be conducted at a site specified by Postie in Los Angeles, California. The arbitrator will apply the Law set forth in Section 16 (Choice of Laws; Venue) to any such arbitration and shall have the power to award any remedy available at Law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator may not require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
16. Choice of Laws; Venue. This Agreement will be governed by the Laws of the State of California, without regard to conflicts of Law principles thereof. Subject to Section 15 (Dispute Resolution), the federal and state courts located in Los Angeles County, California will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts.
17. Irreparable Harm. Each party acknowledges and agrees that the other party will be irreparably harmed in the event thatsuch party breaches Section 6 (Postie Technology) or Section 13 (Confidentiality) and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop breaches of such provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, without the requirement of posting any bond.
18. Notices. All notices, consents, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; or (3) certified mail, return receipt requested, to the other party. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Notices to Postie shall be addressed to 3616 Far West Blvd., Ste 117-103, Austin, TX 78731, attention “Legal Department” with a copy to legal@postie.com. Notices to Brand shall be addressed to the Brand’s address set forth on the most recent insertion order or provided in connection with Brand’s Account. Either party may change its address for notice by giving notice of the new address to the other party.
19. Additional Terms. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including acts of God or any governmental body, war or national emergency, riots or insurrection, epidemic, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power, or telecommunications under third-party control. This Agreement includes the DPA and each Order entered into hereunder, each of which is incorporated into and made a part of this Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all oral or written agreements or understandings, whether written or verbal, between the parties as to the subject matter of thisAgreement. Except as noted herein, this Agreement may be amended or changed only by a writing signed by both parties. Neither party may assign this Agreement or any right, interest, or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger, or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law and the remaining provisions of this Agreement will continue in full force and effect. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. In this Agreement: (1) any headings are for reference purposes only and shall not be used in the construction and interpretation of this Agreement; (2) the singular number shall include the plural, and the plural number shall include the singular; (3) if a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb); (4) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; (5) a monetary amount is in U.S. dollars; and (6) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement. This Agreement may be executed simultaneously in one or more counterparts (including by electronic signature), each of which when executed will be deemed to be an original, but all of which will constitute one and the same agreement.