Standard Terms of Service Bynder Ltd v.15

1. Definitions

   1. "Agreement" means these Terms and any applicable Order Form.
   2. "Affiliate" means any entity directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with such entity, where (i) "ownership" means the direct or indirect ownership of more than 50% of the voting securities or equity interests of such entity and (ii) "control" means the direct or indirect power to direct or cause the direction of the management and policies of an entity.
   3. "Acceptable Use Policy" or "AUP" means Bynder’s Acceptable Use Policy, available at https://www.bynder.com/en/legal/acceptable-use-policy/.
   4. “Customer” includes the legal entity signing the Order Form and any of its Affiliates, and their respective employees, independent contractors, agents. The legal entity signing the Order Form is solely liable for the acts and omissions for its, or for its Affiliates', employees, independent contractors or agents.
   5. "Customer Content" means any data (including personal data), such as electronic data, text, documents, pictures, videos, files or other materials uploaded to, generated by, and/or stored within the Product by Customer.
   6. "Data Processing Addendum"or "DPA" means Bynder’s Data Processing Addendum, available at https://www.bynder.com/en/legal/data-processing-addendum-v15/
   7. "Force Majeure Event" means an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party.
   8. "Initial Term" is defined in the applicable Order Form.
   9. "Material Breach" means (i) any breach of a Party’s confidentiality obligations, (ii) infringement of third party intellectual property rights (subject to Section 15.2 with respect to infringement claims involving the Product; (iii) repeated non-material breaches cumulatively amounting to a material breach; (iv) Customer’s failure to keep its billing information up to date to the extent such failure interferes with Bynder’s ability to invoice Customer hereunder; and (v) any Work Pause in accordance with Section 7.4 that lasts more than ninety (90) days.
   10. "Order Form" means the agreement between Bynder and the Customer that sets forth the details of the Product purchased, the applicable fees and usage limitations and incorporates the SOW.
   11. "Party" or "Parties" means Bynder or Customer, as applicable
   12. "Product" means Bynder’s software-as-a-service product, including applications, solutions and related onboarding, support and maintenance services as set forth in the SLA.
   13. "PO" means a purchase order or similar document.
   14. "Renewal Term" means the term set forth in the applicable renewal document.
   15. "Service Level Agreement" or "SLA" means Bynder’s standard Service Level Agreement, available at: https://www.bynder.com/en/legal/service-level-agreement-v15/.
   16. "Specifications” means any documents, data, designs, specifications, or other information that the Customer makes available to Bynder or that Bynder reasonably requests in connection with the provision of the Product.
   17. "Statement of Work" or "SOW" means the statement of work set forth in the Order Form, which describes the onboarding and project-specific activities and related fees
   18. "Third Party Products" means any third-party owned products, equipment, applications, services, software, networks, systems, directories, websites, databases, or information that the Customer elects to enable, access or use in connection with the Product.
   19. "Term" means the Initial Term and any subsequent Renewal Term.
   20. “Usage Data” means metrics and information collected by Bynder regarding Customer’s use of the Product, including but not limited to data on how Users interact with the Product.
   21. "Usage Policies" means Bynder’s AUP and SLA.
   22. "User" means an individual person authorized by Customer to access and use the Product in accordance with the Agreement.
   23. “Work Pause” means a temporary suspension of the applicable Product by Bynder in accordance with Section 7.4 below.

1. Order Form

   1. Bynder will provide Customer with access to the Product in accordance with this Agreement and the applicable Order Form. Until an Order Form is executed by the Parties, Bynder is not required to provide any services or access to any Product.
   2. A Customer’s Affiliate may access and use the Product: (i) as a User under these Terms; or (ii) as a Customer under a separately executed Order Form between Customer’s Affiliate and Bynder that is governed by these Terms. Customer’s Affiliate will be solely liable to Bynder under such separately executed Order Form.

1. Product Access Terms

   1. Customer’s subscription to the Product grants Customer during the Term a worldwide, non-exclusive, non-transferable right to access and use the Product in accordance with the Agreement.
   2. Bynder will assign unique login credentials specific to each User. A User is expressly forbidden from allowing any other individual, including any other User, to access the Product with that User’s login credentials.
   3. The Product is designed and intended to hold and process Customer’s branding and marketing materials and its components or other digital assets as permitted by the AUP.
   4. Customer and its Users will use the Product strictly in accordance with the AUP.
   5. In the event Customer or its Users breach this Section 3, Bynder may, at its sole discretion, subject to reasonable notice if circumstances allow it, suspend access to the Product until Customer remedies the breach. Such suspension will not constitute a waiver of Bynder’s other rights under the Agreement. The suspension will be revoked upon Customer’s remedy of the breach.

1. Ownership of Intellectual Property Rights

   1. Customer retains all right, title, and interest in and to Customer Content. Customer hereby grants Bynder a non-exclusive, non- transferable, non-sublicensable license to use Customer Content only as necessary to provide the Product to Customer and to carry out its obligations under the Agreement.
   2. Bynder retains all right, title, and interest in and to the Product and any documentation provided by Bynder and made available in the Product, including, but not limited to, all Product source code and object code. Bynder hereby grants to Customer all rights required for Customer to access and use the Product in accordance with the Agreement.
   3. Except as expressly stated in the Agreement, no rights are granted by either Party to the other with respect to its intellectual property.

1. Customer Content

   1. By using Customer Content in or through the Product, Customer represents and warrants that: (a) Customer owns the Customer Content and/or has the right to use it and the right to grant Bynder the rights as provided in the Agreement; (b) the Customer Content and Customer’s use of the Customer Content in or through the Product will not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any individual or entity; (c) the Customer Content and Customer’s use of the Customer Content will not violate any applicable laws; (d) Customer Content and Customer’s use of Customer Content is not threatening, abusive, harassing, stalking, defamatory, deceptive, false, misleading or fraudulent. Bynder reserves the right to take reasonably appropriate measures, including suspending Customer’s account, if Bynder receives credible notice alleging that Customer Content violates applicable law or the rights of any third party. Bynder will notify Customer in writing of such measures unless prohibited by applicable law.
   2. Bynder will only access Customer Content: (a) with Customer’s express consent; or (b) upon reasonable written notice to the extent required by applicable law

1. Bynder Obligations

   1. Bynder will provide the Product with reasonable care and skill in a professional manner consistent with industry standards.
   2. Bynder reserves the right, in its sole discretion, to make changes to the Product that it deems necessary or useful to: (a) maintain or enhance the security, quality or delivery of the Product or its cost efficiency; (b) adapt to technical or commercial market changes; or (c) to comply with applicable law or enhance security measures. Such changes will not substantially impair the functionalities of the Product.

1. Customer Obligations

   1. Customer will not copy documentation provided to it by Bynder, except as necessary for its Users to access and use the Product in accordance with the Agreement.
   2. Customer will reasonably cooperate with Bynder in its provision of the Product, including without limitation, making available to Bynder the Specifications as reasonably requested by Bynder.
   3. Customer will provide Bynder with accurate and complete Specifications. Bynder will not be liable for any problems or issues arising from Customer’s inaccurate Specifications. In the event Customer discovers it has provided Bynder with inaccurate Specifications, it will promptly notify Bynder of such inaccuracies.
   4. If Customer fails to provide Bynder with Specifications within a reasonable timeframe, or in accordance with a timeframe provided in any applicable Order Form, Bynder may, impose a Work Pause until it receives such Specifications from Customer. If a Work Pause lasts for more than 90 calendar days, Bynder may terminate the Agreement For Cause as provided in Section 17.3.

1. Third Party Products

   1. The Product does not require Third Party Products for its use. In the event, Customer uses Third Party Products, such use may be subject to third party terms, disclaimers and policies. Bynder disclaims all liability arising in whole or in part from Customer’s use of Third Party Products, or Customer’s reliance on any privacy, data security, or other policies related to such Third Party Products.

1. Data Protection

   1. In the event the Product processes Personal Data within Customer Content, Bynder will be deemed a Processor and Customer a Controller (or the equivalent under applicable data protection law), and such processing will be governed by the DPA.
   2. Bynder may process Personal Data of Customer’s staff, representatives and Users, for the purposes of managing the business relationship, to provide and monitor access to the Product, to improve the Product and optimize its use. Bynder bases this processing on legitimate interest, and it will comply with its Global Privacy Policy, available at https://www.bynder.com/en/legal/privacy-policy/.

1. Pricing and Payment Terms

   1. Bynder will invoice Customer in accordance with the terms set forth in the Order Form. Customer will be deemed to have received an invoice if Bynder has sent it to the relevant email address as specified in the Order Form.
   2. Unless otherwise provided, all prices are expressed in the currency referred to in the Order Form.
   3. All prices are exclusive of value added tax (VAT) and other government taxes, banking fees, and regulatory fees that have been or are later imposed. Each Party agrees to pay any tax assessed to it by a competent tax authority. Customer will remit payment in full to Bynder regardless of any taxes that are required to be deducted or withheld. Any regulatory fees or other costs imposed by a governmental entity (e.g., registration in a particular jurisdiction) that result from Customer’s subscription hereunder shall be the exclusive responsibility of Customer, whether paid by Customer directly or paid by Bynder and subject to reimbursement.
   4. Customer may dispute an invoice in good faith within twenty (20) calendar days of receiving the invoice by providing written notice to Bynder detailing the reasons for such dispute. Customer must timely pay any undisputed portion of the invoice.
   5. The Subscription Fee will be adjusted at the annually rate of the United Kingdom Consumer Prices ("CPI") upon each anniversary of the Agreement. For the avoidance of doubt, the anniversary of the Agreement is the Project Start Date. Should CPI conclude negative rate at the time of annual adjustment, the Standard Indexation for that year will be zero (0) and no adjustment to the Subscription Fee will be made. Upon renewal, the Subscription Fee will be automatically uplifted by 5% in addition to the Standard Indexation. The Standard Indexation will then resume at each subsequent anniversary date of the Agreement throughout the course of the new Term.
   6. If Customer uses a PO, it must issue a PO upon execution of the Agreement, any renewal thereof, and any future add-on purchase. Any delay or failure in issuing a PO will not relieve the Customer of its payment obligations under the Agreement. Any terms and conditions in a Purchase Order will not apply to the Agreement.
   7. If Customer fails to timely satisfy its payment obligations, a late payment interest rate of two percent (2%) per month or the highest rate permitted by law, whichever is lower, will apply to the outstanding and undisputed amount without the need for Bynder to issue a demand or notice of default.
   8. Upon fifteen (15) business days’ written notice, Bynder may suspend access to the Product if Customer has failed to timely satisfy its payment obligations.
   9. All payment obligations are non-cancellable, and all amounts paid are non-refundable.

1. Confidentiality

   1. "Confidential Information" means any information that has come to either Party’s knowledge (whether before or after the execution of the first Order Form, whether orally, in writing, in electronic form or other media) by virtue of its business relationship with the other Party and that, among others, includes: (a) information that constitutes a trade secret; (b) information that is owned, developed or otherwise acquired by either Party, including the Party’s financial data, business plans, customer information, software, programming, systems and use documentation, technical information, technology, designs, ideas, inventions, data, data formats and files, and all copies and tangible embodiments thereof; (c) any information relating to software originating from Bynder; and (d) any other information that would be considered confidential by a reasonable person under the circumstances of its disclosure.
   2. While performing its obligations under the Agreement, either Party may deliver Confidential Information to the other. If a Party receives the Confidential Information of the other, such receiving Party will: (a) use such Confidential Information solely for the purpose of carrying out its obligations according to the Agreement; (b) take reasonable precautions to protect such Confidential Information (including all precautions that such Party employs with respect to its own confidential materials), (c) not divulge any such Confidential Information or any information derived therefrom to any third party; and (d) only divulge such Confidential Information to those of its employees, representatives, Affiliates, auditors or insurance brokers who have a reasonable need to know such information and are subject to confidentiality obligations at least as stringent as those in this Section 11.
   3. The provisions of Section 11.2 will not apply to: (a) any Confidential Information that (i) is or becomes generally available to the public through no improper action or inaction by the receiving Party or any of its employees, representatives, or Affiliates; (ii) was in possession of, or known by, the receiving Party prior to receiving it from the disclosing Party; (iii) was properly disclosed to the receiving Party without any obligation of confidentiality; or (iv) was discovered or created by the receiving Party without reliance on such Confidential Information; or (b) disclosures required by applicable law or to exercise its own rights under the Agreement, provided that the receiving Party (1) uses reasonable efforts to limit such disclosure and to obtain confidential treatment or a protective order with respect thereto, (2) allows the disclosing Party to participate in the proceedings related to such legal or court-ordered requirement (to the extent reasonably practical) and (3) reasonably cooperates with the efforts of the disclosing Party to contest or limit the scope of such required disclosure.

1. Product Analysis

   1. Bynder endeavors to continually improve the Product(s). In doing so, Bynder may collect Usage Data. Usage Data is used to develop new features or improve existing features of the Product.

1. Publicity

   1. Customer authorizes Bynder to use the following information as a commercial reference in publications, events and actions to promote Bynder’s Product and services: Customer’s name and information that is publicly known about Customer (including Customer’s logo). Customer can revoke this authorization at any time in writing without any justification.

1. Warranties

   1. Bynder warrants to Customer that, as of the Effective Date: (a) it has the full right, power and authority to enter into, and fully perform its obligations under the Agreement; (b) the Product will conform in all material respects with the functionalities as described in the Order Form. Customer’s sole and exclusive remedy for any breach of warranty in Section 14.1(b) are set forth in the SLA
   2. Customer warrants to Bynder that, as of the Effective Date: (a) it has the full right, power, and authority to enter into and fully perform its obligations under the Agreement; and (b) Users will comply with the Agreement.
   3. EXCEPT AS EXPLICITLY STATED IN THE AGREEMENT, THE PRODUCT IS PROVIDED BY BYNDER ON AN “AS-IS” BASIS. ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITATION, BYNDER DOES NOT WARRANT THAT (a) THE OPERATION AND/OR USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE; (b) THE PRODUCT WILL PERFORM IN EVERY OPERATING ENVIRONMENT; (c) ALL DEFICIENCIES OR ERRORS IN THE PRODUCT ARE CAPABLE OF CORRECTION; OR (d) THE PRODUCT MEETS CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.

1. Indemnifications

   1. To the extent not prohibited by law, Bynder agrees to indemnify and defend Customer, its Affiliates, and its and their officers, directors, employees, agents, and representatives from and against any and all liabilities, expenses, damages and costs, including but not limited to, reasonable attorneys’ fees, related to all third party claims, charges and investigations that the Product, as delivered by Bynder and used as permitted under the Agreement, infringes or misappropriates the intellectual property rights of a third party.
   2. If a third party seeks an injunction claiming that a component of the Product infringes the intellectual property rights of a third party, and that injunction is not dismissed within 30 calendar days, or if a court of competent jurisdiction issues a judgment that the Product infringes upon the intellectual property rights of a third party, Bynder will, at its sole discretion: (a) obtain for Customer the right to continue using the infringing component; (b) replace or modify the infringing component; or (c) if (a) and (b) are not commercially feasible, allow Customer to terminate the use of the infringing component and reimburse to Customer any prepaid fees related thereto.
   3. To the extent not prohibited by law, Customer agrees to indemnify and defend Bynder, its Affiliates, and its and their officers, directors, employees, agents, and representatives (collectively, the "Bynder Entities"), from and against any and all liabilities, expenses, damages and costs, including but not limited to, reasonable attorneys’ fees, related to all third party claims, charges and investigations that Customer Content infringes the intellectual property rights or violates the data privacy rights of any third party.
   4. In order to be entitled to an indemnity, the indemnified Party must: (a) provide the indemnifying Party with prompt written notice, in no event more than thirty (30) calendar days after becoming aware of such a claim; (b) give the indemnifying Party sole control and authority over the defense and/or settlement of such claim; and (c) provide the indemnifying Party with reasonable assistance to defend and/or settle any such claim; and (d) take reasonable steps to mitigate its loss.
   5. This Section 15 provides the Parties’ exclusive remedies with respect to the subject matter of any indemnifiable claims.

1. Limitations of Liability

   1. NOTHING IN THE AGREEMENT WILL LIMIT A PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD.
   2. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS), LOSS OF OPPORTUNITIES, REPUTATIONAL DAMAGES OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY WAS ADVISED OF OR OTHERWISE AWARE OF THE LIKELIHOOD OF SUCH DAMAGES.
   3. THE AGGREGATE LIABILITY OF EITHER PARTY WILL NOT EXCEED THE SUBSCRIPTION FEE PAYABLE BY CUSTOMER TO BYNDER IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
   4. Bynder shall have no liability whatsoever to Customer for any expenses, damages and costs related to the non-functioning of the Product (whether in part or in whole) due to unavailability of the internet or due to changes in legislation or technical restrictions that limit access to or functionality of the Product. In the event of a change in laws or regulations in any of the countries in which Customer has Users, including changes to laws and regulations on cloud computing services, data protection and privacy, or Software as a Service, which impact Bynder’s ability to offer the Product, Customer accepts that Bynder may limit the availability of the Product in a manner to be determined in Bynder’s sole discretion, and Customer hereby releases Bynder from any liability relating to such limitation. If one of the events listed in this Section 16.4 takes place, Parties shall have a discussion in good faith to mitigate such event’s impact.

1. Term and Termination

   1. An Order Form under the Agreement will become effective on the Effective Date and will continue in full force and effect for the Term specified in any applicable Order Form.
   2. Upon expiration of the Initial Term (as defined in an applicable Order Form) the Agreement will automatically renew for the duration of the Initial Term on the same Terms applicable immediately prior to expiration of the Agreement unless either Party provides written notice of its intention not to renew no less than ninety (90) calendar days prior to the expiration of the current Term.
   3. Either Party may terminate the Agreement, including any applicable Order Form, effective immediately upon written notice in the event of: (a) dissolution, liquidation, bankruptcy or insolvency of the other Party; or (b) the other Party’s Material Breach of the Agreement that has not been cured within thirty (30) calendar days of receiving written notice of the breach (each of sections (a) and (b), "a termination "For Cause"). In the event of Customer’s violation of the Usage Policies, Bynder may terminate the Agreement and any applicable Order Form immediately upon written notice to Customer.
   4. If the Agreement is terminated by Customer For Cause (as provided in Section 17.3), Bynder will refund the pro-rata amount of any pre- paid fees from the date of the event constituting such termination.
   5. If the Agreement is terminated by Bynder For Cause or for Customer’s violation of the Usage Policies, all outstanding amounts owed to Bynder for the remainder of the Term will become due and payable.
   6. Upon termination or expiration of the Agreement for any reason, Bynder will immediately terminate Customer’s access to the Product. All outstanding amounts owed to Bynder will immediately become due and payable upon expiration or termination by Bynder of the Agreement or the applicable Order Form. All payment obligations survive termination of the Agreement including any applicable Order Form.
   7. Within ninety (90) calendar days of termination or expiration of the Agreement, Customer may request in writing that Bynder return to Customer its Customer Content, in which case Bynder will return Customer Content in a commonly accepted export format within ninety (90) calendar days of the request. Customer will be invoiced on a time and material basis for work needed to return its Customer Content, unless Customer terminated the Agreement For Cause, in which case, Bynder will be responsible for the cost of returning Customer Content. For the avoidance of doubt, all Customer Content can be downloaded by Customer at any time during the Term.
   8. If Bynder does not receive a request to return Customer Content pursuant to Section 17.7, all Customer Content will be deleted after ninety (90) calendar days of termination or expiration of the Agreement, unless otherwise required by law, or on automatic back-ups. Upon written request, Bynder will provide a certificate to Customer certifying that Customer Content has been destroyed.
   9. Upon termination or expiration of the Agreement the provisions of the Agreement will terminate except those Sections a Party would reasonably expect to survive termination.

1. Governing Law and Jurisdiction

   1. The Agreement will be governed by the laws of England and Wales without regard to or application of its conflicts of law provisions.
   2. The Parties agree that any dispute related to the Agreement, other than disputes related to payment addressed under Section 10 hereof, must first be submitted for at least one negotiation session and each Party will use all reasonable endeavors to participate in the negotiation session in good faith to resolve the dispute before the dispute may be submitted for arbitration. If the dispute remains unresolved for more than 60 calendar days after the first negotiation session has begun, the dispute may proceed to arbitration.
   3. The Parties agree that any and all disputes, other than disputes related to payment addressed under Section 10 hereof, arising out of or related to the Agreement will be exclusively submitted for final and binding arbitration pursuant to the Arbitration Rules of the London Court of International Arbitration ("LCIA") in effect on the date of commencement of arbitration. The costs of arbitration (excluding each Party’s attorneys’ fees) will be split between the Parties, unless the arbitration award provides otherwise. The arbitral tribunal will consist of three arbitrators, unless the amount of claim as specified by the claimant in the arbitration does not exceed GPB 300.000,00, in which case the arbitral tribunal will consist of one arbitrator. The place of arbitration will be London, United Kingdom and the arbitration proceedings shall be conducted in English. The arbitral tribunal will not have the authority to award punitive or exemplary damages and the Parties expressly waive their rights to any such damages. The award may be confirmed and enforced in any court of competent jurisdiction. The Customer expressly consents to the jurisdiction of the courts in Amsterdam, the NetherlandsLondon, United Kingdom and waives objections to such proceedings on the grounds of inconvenient forum.
   4. Each Party acknowledges that the other Party is entitled to seek injunctive relief and/or other equitable remedies without the requirement to prove special damages. Such relief may be sought either to a court of having competent jurisdiction or under the LCIA rules for expedited arbitration.
   5. The Parties explicitly waive the right to claim consolidation of arbitral proceedings, except in the case of crossclaims arising directly from the subject matter of the arbitration. The Parties agree that any attempt at consolidation shall be considered a deviation from the agreed arbitral proceedings.

1. General Provisions

   1. Any notice required or permitted to be delivered to either of the Parties according to the Agreement will be (a) delivered according to such Party’s Contact Information, as specified in the applicable Order Form; and (b) deemed effective (i) upon receipt, when delivered personally or by courier; (ii) the day delivered, if delivered by a reputable overnight delivery service; or (iii) if delivered via email, the earlier of written confirmation receipt or one business day, unless the sender receives an automated message that the email delivery has failed. Each Party is responsible for apprising the other Party of any changes in Contact Information.
   2. The Agreement, including for the avoidance of doubt, the Global Privacy Policy, Usage Policies, Data Processing Addendum and each Order Form, constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of such parties with respect to such subject matter, whether written or verbal. Any term of the Agreement may be waived, terminated or discharged only with the written consent of both Parties. The failure of either Party to insist upon the performance of any of the terms or conditions contained in the Agreement, and the failure of either Party to exercise any right under these Terms, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.
   3. If any provision of the Agreement is held to be unenforceable, the Parties will renegotiate such provision in good faith in a manner reflecting the original intent of the Parties. If the Parties cannot agree upon an enforceable replacement for such provision, then (a) such provision will be excluded from the Agreement, (b) the balance of the Agreement will be interpreted as if such provision were so excluded and (c) thereafter, the Agreement will be enforceable in accordance with its terms.
   4. Neither Party may assign this Agreement in whole or in part, without the prior written consent of the other Party, and any such assignment will be null and void; provided, however, that the Parties may assign all of their rights and obligations under this Agreement to any one Affiliate for reasons of corporate restructuring or internal reorganization, or following an acquisition, a merger or sale of all or substantially all of the assigning Party’s assets. The Agreement will be binding upon and will inure to the benefit of the Parties permitted successors and assigns.
   5. Neither Party will be responsible for failure or delay of performance if caused by a Force Majeure Event. Each Party will use reasonable efforts to mitigate the effect of a Force Majeure Event. Either Party may terminate the Agreement immediately upon written notice, if the other Party is unable to perform its obligations under the Agreement due to causes stated in this Section 19.5 for more than 30 calendar days.
   6. Neither the Agreement nor any provision contained herein will be construed as creating or constituting a partnership, joint venture, or agency relationship between the Parties. The Parties are independent contractors engaged on a non-exclusive basis and neither Party has the power or authority to assume or create any obligation or responsibility on behalf of the other Party.
   7. These Terms may only be amended by mutual written Agreement between Parties.
   8. In the event of any inconsistency between the documents making up the Agreement, the order of precedence will be: (i) the DPA; (ii) the Order Form; (ii) the Usage Policies; and (iii) these Terms.
   9. The Agreement is made for the benefit of the Parties and is not intended to benefit or be enforceable by any third party. The rights of the Parties to terminate, rescind, or amend the Agreement, or to reach any settlement relating to the Agreement, are not subject to the consent of any third party.

Last updated and reviewed on April 11, 2025