Terms and Conditions

Topsort, Inc (“Topsort”, “we”, “our”, “us”) offers Sponsored Listings and Banner Ads Platform as a Service (“the Service”). Please read these terms and conditions (“terms”, “terms and conditions”) carefully before using the Service.

SaaS Services Agreement

The SaaS Services Agreement (“Agreement”) is entered into on the latest date of signature (the “Effective Date”) between Topsort, Inc with a place of business at Delaware (“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the Order Form, as well as the attached Terms and Conditions, and contains, among other things, warranty disclaimers, liability limitations, and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

Terms and Conditions

1. SaaS Services and Support

1.1 Services. Subject to all the terms, conditions and restrictions of this Agreement, including full payment of all applicable fees, Company will use commercially reasonable efforts to provide Customer Services during the term of the Agreement. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2 Support. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.

2. Restrictions and Responsibilities

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software belong to Company (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer agrees to notify Company immediately upon becoming aware of any unauthorized use of Customer’s username or password or account or any other known or suspected breach of security. As between Customer and Company, Customer is fully responsible and liable for compliance with the provisions of this Agreement by its Affiliates and each of the employees, agents, subcontractors for any and all activities that occur under Customer’s account. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3 Company will not be responsible or liable for any failure in the Services or other damages, losses or claims resulting from or attributable to (a) Systems of the Customer or its Affiliates, (b) network, telecommunications or other service or equipment, (c) Customer’s or a third party’s (except for a third party subcontractor engaged by Company to provide the Services) products, services, negligent acts or omissions, (d) Customer’s breach of this Agreement, or (e) scheduled maintenance.

2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

2.5 Company, in its sole discretion, may from time to time modify the Services or add, update, upgrade, change, or delete features or functionality of the Services in its reasonable discretion. Company will use reasonable endeavors to notify Customer of such changes to the Service by posting information about them on the website or within the platform. Company will provide at least 90 days’ prior notice before sunsetting major features or functionality of the Services (“Sunset Notice”). If the sunsetting of such features or functionality materially adversely affects Customer’s use of the Service, then Customer may terminate this Agreement at any time from its receipt of the Sunset Notice up until 30 days following the date that the feature or functionality has been sunset by providing written notice to Company (“Sunset Notice Period”). Customer’s continued use of the Service after the Sunset Notice Period constitutes Customer’s acceptance of these changes.

2.6 The Services may be used and accessed only by Authorized Users who have a need to access the Services. In no event may third parties other than Affiliated Entities use and access the Services provided to Customer. Neither Customer nor any Affiliated Entities or Authorized Users may use the Services or any of the Software to compete with the Company. Customer shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of the Agreement.

2.7 Customer agrees that all user information provided to Company by Customer and/or the Authorized Users, whether for purposes of obtaining a username and password, other access credentials or otherwise, will be accurate and complete in all respects.

3. Proprietary Rights; Customer Obligations

3.1 Grant of License. Company hereby grants to Customer a revocable (in accordance with this Agreement), non-exclusive, non-sublicensable, non-transferable, limited license to use the Services, or any component thereof, during the Term and in accordance with the restrictions set forth herein and the applicable Order for Customer’s internal business purposes only. Except for the limited rights and licenses expressly granted hereunder, no other license is granted to Customer, no other use is permitted and Company shall retain all right, title and interest in and to the Services.

3.2 Additional Restrictions. Customer agrees not to, nor attempt to, nor permit any third party to: (i) use the Services to deliver spyware, adware, spam, or other deceptive or fraudulent Ads and/or malicious code; (ii) violate any local, state, national or international law or regulation in connection with use of the Services, or otherwise use the Services in any way that is in furtherance of criminal, fraudulent, or other unlawful activity; (iii) interfere with or disrupt the Services or servers or networks connected to the Services; (iv) violate any applicable codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Services; (v) interfere with or attempt to interfere with any other person’s use of the Services; (vi) gain access to or attempt to gain access to any account, computers or networks related to the Services without authorization; (vii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Services; or (vii) use traffic sources generated by toolbars, plugins, piracy sites, and/or any similar sites or applications. Company reserves the right to delete an account or suspend Customer’s access to the Services if Customer violates this Section 3.2.

3.3 Compliance with Law. Customer represents and warrants it will comply with all applicable laws and regulations of the United States and other applicable jurisdictions in using the Services, including without limitation, import, re-import, sanctions, anti-boycott, export, re-export, data localization, and data privacy and security laws. Customer shall be solely responsible for complying with any home country restrictions on receipt, use or downloading of the Services.

4. Intellectual Property

4.1 Customer Obligations. Customer agrees that the Company owns all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. Customer will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. Customer further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit, other than Affiliated Entities subject to the terms herein. Company reserves all rights in the Services and Software not expressly granted to Customer hereunder.

4.2 Retention of Rights. Customer shall retain ownership of all Customer rights in the content and data provided to Company in connection with Customer use of the Site and the Service (“Customer Data”). Customer hereby grants Company a non-exclusive license to copy, use, distribute and disclose the Customer Data solely as necessary to provide the Services.

4.3 Data Use. Company may derive and compile from Customer’s usage of the Services certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal any information about Customer or any individual. Such aggregated data and metadata may be used for Company’s own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve Company’s products and services, create new products and marketing.
4.4 Trademark. Customer acknowledges and agrees that Company and its licensors’ trademarks, brand names and copyright notices will be included on the Services and associated documentation. Customer agrees not to remove, modify, obscure or hide any trademarks, brand names or any other proprietary rights notices included on the Service and associated documentation.
4.5 License Grant. Company shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, or other information provided by Customer or any Authorized User relating to the Service.

5. API Terms

5.1 Use of API. Company provides an application programming interface (“API”) as part of the Service.

5.2 API Limits. Company may from time to time set and update limits on Customer usage of the API, including without limitation limits on API requests and access to data (the “API Limits”). The API Limits will be described on the Company website and/or in Company documentation. Customer agrees to comply with all API Limits, and further agrees that Customer will not use the API in a manner that constitutes excessive or abusive usage, or otherwise is in breach of the terms of this Agreement. Without limiting the foregoing, Customer agrees not to use the API in a manner that competes with any software or services provided by Company, or that provides API functionality to third parties. Customer will not circumvent or attempt to circumvent any API Limits.

5.3 Usage Monitoring. Company reserves the right to monitor Customer API usage to verify compliance with the terms of the Agreement and to improve Company’s products and services. Customer agrees not to interfere with any such monitoring.

5.4 Update of API. Company may update the API from time to time and will (i) use reasonable endeavors to notify Customer of updates by posting information about such updates on the Site, (ii) provide a 30 days prior notice before making any material or breaking API change.

5.5 Maintenance Window. Company allocates time weekly on Sundays between 3:00 AM and 3:30 AM within the timezone of the given API server for maintenance. Interruptions during this time window are a possibility.

6. Confidentiality

6.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Each party acknowledges and agrees that any violation of this Section may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that the disclosing party shall have at law or in equity.

6.2 Upon termination or expiration of the Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.

6.3 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

6.4 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its internal business. No rights or licenses are granted except as expressly set forth herein.

6.5 Publicity:

(a) Company may use Customer’s name and logo solely to identify Customer as the Company’s customer (i) on the Company’s website; (ii) on the Company’s social media channels (i.e. Facebook, Instagram, Twitter and LinkedIn, etc.), and (iii) in the Company’s printed marketing materials, in each case, within a list of Company’s clients.

(b) For the avoidance of doubt, in using the Customer’s name and logo, the Company may not: (i) single out or highlight Customer in any way; or (ii) otherwise state that Customer recommends, promotes or endorses the Company or its services.

(c) If the Company wishes to publish Customer’s testimonials or a case study based on the services it provides to the Customer, it shall only do so upon agreeing the proposed content of such testimonial and/or a case study with the Customer in writing in advance.

(d) The authorization granted in this clause 3.4 is: (i) subject to the Company’s abiding to all Customer’s branding guidelines at all times, as those may be amended or supplemented by Customer; (ii) revocable and limited to the duration of the Agreement. Once the Agreement is terminated, the Company shall cease any use of Customer’s name and logo, unless specifically agreed otherwise in writing.

7. Payment of fees

7.1 Customer agrees to pay Company all fees associated with the Service as set forth in the Order Form. Unless otherwise set forth in the Order, the following payment terms shall apply: (i) Base fees for the first year are due upon the Effective Date and paid annually; (ii) Subsequent fees will be invoiced, in arrears, within five (5) days after the end of each 30 day period during the term. If credit card payments are specified on the Order, Customer authorizes its credit card to be charged by Company for the invoiced amount at the time of invoice. If Customer is not paying by credit card, then Customer agrees to pay the invoiced amount within thirty (30) days of receipt. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s account manager responsible for Customer All payments under the Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one percent (1 %) per month, or (b) the maximum rate allowed by law.

7.2 If a payment becomes five (5) days or more overdue, Company reserves the right to suspend Customer access to the Service without liability to Customer, until payment is made in full. If any payment becomes ten (10) days or more overdue, Company may terminate the Agreement upon notice to Customer.

7.3 If Customer has procured the Services through a Partner Transaction, then different terms regarding invoicing, payment and taxes may apply as specified between Customer and the Partner. Customer acknowledges that: (a) Company may share information with the Partner related to Customer’s use of Company’s Services; (b) the termination provisions contained herein will also apply if Customer’s Partner fails to pay applicable fees; and (c) Partner is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Company or in any way concerning the Services.

7.4 The fees do not include Taxes and similar assessments. For purposes of this Agreement, “Taxes” shall mean any sales, excise, value-added (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on Company’s income. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Customer shall also be responsible for all the costs involved in the payment of its fees to Company, whether they are costs involved in a bank transfer of the fees, costs associated with a payment processing company that handles the transfer of the fees, costs associated with payment of the fees through credit cards, or others costs of transferring payment of the fees.

8. Term and Termination

8.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for the periods specified in the Order Form (collectively, the “Term”), unless written notice of non-renewal is requested by either party at least thirty (30) days prior to the end of the then-current term. The Initial Service Term of this Agreement begins on the Effective Date of the Order, subject to Customer providing Company with reasonably requested information, assistance and approvals. If the Effective Date is delayed by the Customer, then the Effective Date will be such later date as reasonably specified by the Company.

8.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, (a) if the other party materially breaches any provision of this Agreement and fails to cure such breach within 30 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Company may suspend or terminate Customer’s use of the Services at any time without prior notice: (a) in order to prevent damages to, or degradation of, Company’s network integrity or infrastructure; (b) if needed to comply with any law, regulation, court order, or other governmental request or order which requires immediate action; (c) in order to otherwise protect Company from potential legal liability; (d) if Customer does not provide a valid payment method or fails to pay fees in accordance with this Agreement; (e) if the Customer violates the usage restrictions contained herein; or (f) if the Customer is found to use abusive or harassing language toward any of Company’s employees.

8.3 Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data.

8.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

9. Warranty and Disclaimer

9.1 Customer and Company each warrant that they have full authority to enter into the Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder.

9.2 Customer represents and warrants that all Customer Data: (i) is owned by Customer, or Customer has the full right to provide the Customer Data to Company; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. Customer further represents and warrants that its use of Customer Data on the website or platform or in connection with the Services is not in breach of any covenant or obligation of confidentiality that Customer has to any other person or entity. Customer is solely responsible for the Customer Data, and acknowledges that Company has no responsibility or intent to review or monitor any Customer Data.

9.3 Customer shall be solely responsible for its use of the Service, and, acknowledge and agrees that the Services are strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.

9.4 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

10. Indemnity

10.1 Customer Indemnification. Customer, at its own expense, shall indemnify, defend and hold Company harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorneys’ fees) arising out of or relating to Customer’s use of the Services, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) Customer’s breach of any representations, warranties, or covenants in the Agreement, (b) Customer’s compliance with applicable laws and regulations, and (c) the Customer Data. Company shall provide Customer with prompt written notice of any such claim.

10.2 Company at its own expense, shall indemnify, defend and hold Customer harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorneys’ fees) in each case to the extent any of the foregoing are incurred as a result of a claim, action or proceeding brought against a Customer Indemnitee by a third party alleging that the Service (excluding the Customer Data) or Customer’s use of the Service in accordance with its documentation and this Agreement infringe, misappropriate or otherwise violate the U.S. patent, copyright, trademark, trade secret or other intellectual property right of such third party (each, an “Infringement Claim”). Customer must immediately notify Company of any Infringement Claim, allow Company to control the defense and settlement of the claim, and provide reasonable cooperation to Company (at Company’s expense) in the defense of the claim. Company will not enter into a settlement of any such claim in a manner that imposes any liability on Customer without Customer prior written consent (not to be unreasonably withheld). Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.

If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service as contemplated by this Agreement, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and require Customer to cease using the Service upon written notice and promptly refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.

11. Limitation of Liability

The limit of Company’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to Customer or to any third party concerning performance or non-performance by Company, or in any manner related to the Agreement or the Service, for any and all claims shall not exceed in the aggregate the fees paid by Customer to Company hereunder with respect to the Services at issue (excluding any fees or charges relating to approved expenses incurred by Company on behalf of Customer) during the three (3) months prior to the date that the relevant cause of action accrued.

In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence.

The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and Company´s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.

12. Miscellaneous

12.1 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, pandemic, severe weather or other act of God, failure of telecommunication or internet service providers.

12.2 Entire Agreement. The Agreement (including the Order and any attachments thereto specifically agreed by the parties) constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

12.3 Assignment.. This Agreement and the rights and obligations hereunder may not be assigned, transferable or sublicensable in whole or in part by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.

12.4 Severability. Every provision of the Agreement is intended to be severable. If any section of the Agreement is found to be invalid or unenforceable, then such section will be limited or removed from the Agreement to the minimum extent necessary and the rest of the Agreement will remain in full force and effect and enforceable.

12.5 Independent Contractors. The parties are and intend to be independent contractors with respect to the services contemplated hereunder and so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. Company agrees that neither it, its employees nor its contractors shall be considered as having an employee status with Customer. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created. There are no intended third-party beneficiaries under the Agreement

12.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

12.7 Government law & press release. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.