Terms & Conditions

MASTER SERVICES TERMS AND CONDITIONS

THE ORDER FORM AND THESE MASTER SERVICES TERMS AND CONDITIONS INCLUDING APPLICABLE EXHIBITS, SCHEDULES, AND ANY ADDENDA OR AMENDMENTS THERETO (COLLECTIVELY REFERRED TO AS THE “AGREEMENT”), SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU (AS AN INDIVIDUAL) OR THE LEGAL ENTITY THAT YOU  REPRESENT AND ITS AFFILIATES (“CUSTOMER”) AND  APPMEETUP, INC. OR OTHER AFFILIATE COMPANY AS  IDENTIFIED IN AN ORDER (“COMPANY”), CONCERNING USE OF THE SERVICE (AS DEFINED HEREIN). BY  ORDERING OR OTHERWISE USING THE SERVICE, CUSTOMER AGREES TO AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. COMPANY AND CUSTOMER MAY BE REFERRED TO COLLECTIVELY AS THE “PARTIES” OR INDIVIDUALLY AS A  “PARTY.” 

Background

The Company is a coaching and training company that sells training and marketing services and distributes technology subscriptions, technology services, and proprietary training content. The Company sells and distributes a variety of digital products (“Service Products”), both directly and through a network of partners (the “Company Network”). Customer wishes to engage the Company subject to the terms and conditions of this Agreement (collectively, the “Services”).

Therefore, in consideration of the mutual covenants contained in this Agreement, including any exhibits and schedules, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions

• “Affiliate” of a Party means: (a) any entity that such Party controls; (b) any entity that controls such Party; or (c) any entity under common control with such Party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.
• “Authorized User” means an employee or contractor of Customer who is authorized by Customer to access and use the Service Product, and who has been issued a Service Product account by Customer that is associated with a unique email address with a domain name owned or controlled by Customer.
• “Customer Data” means all data, trademarks. service marks, trade names, logos, content, information, and other materials submitted by Authorized Users into the Service Product and the Customer-specific output that is generated by Customer’s use of Professional Services.
• “Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service Product and that are made available by Company to Customer.
• “Effective Date” is the later of the date an applicable Order has been signed and the date all fees specified in the Order have been paid; the date this Agreement becomes effective.
• “Order” means a mutually executed order form, statement of work, schedule, or other ordering document which details the Services to be purchased, the associated pricing, and any applicable commercial terms for Customer to purchase Services from Company.
• “Service Product” means the Company’s online training platform and/or any digital products engaged to provide Professional Services to Customer as identified in the Order. References to the “Service Product” in this Agreement include the Documentation.
• “Professional Services” means any professional services, such as consulting, marketing, implementation, or training services, provided by Company to Customer as expressly identified in the Order.
• “Third Party Products and Content” means any applications, products, services, platforms, or content related to Customer’s use of Professional Services and that are provided by Customer or a third party.
• “Work Product” means the tangible or intangible results of Grantee’s Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts.

2. Responsibilities

2.1. Provision of the Service Product.  Subject to the terms and conditions of this Agreement and during the

Term, Including any restrictions on the number of Authorized Users permitted to use the Service Product if and as set forth in the Order, Company grants Customer a non-exclusive, non-transferrable and non-sublicensable right for Authorized Users to access and use the Service Product solely for the internal business operations of Customer. 

2.2. Updates and Upgrades.  The terms of this Agreement shall also apply to updates and upgrades of the Service Product subsequently made available by Company to Customer. Company may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service Product.  

2.3. Protection of Customer Data.  Company shall maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data.

2.4. Compliance with Laws. Each party shall comply with all laws applicable to its performance under this Agreement.

2.5. Support.  As part of the Service Product, Company shall provide Customer with Company’s standard support, Documentation, and other online resources to assist Customer in its use of the Service Product.

2.6. Professional Services.  If Professional Services are purchased in the Order, Company shall provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.

2.7. Use of Subcontractors. Company may use subcontractors to provide any part of the Services, provided that Company has conducted due diligence on such subcontractors, such subcontractors are bound in writing to the material terms of this Agreement, including confidentiality and compliance with laws, and Company remains liable for all acts and omissions of its subcontractors.

3. Access to and Use of the Service Product

3.1. Authorized Users.  Authorized User accounts cannot be shared or used by more than one Authorized User.  Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts.

3.2. Customer Responsibilities.  Customer shall: (a) obtain, and assign to Company, any permissions and consents required for Company and Authorized Users to access Customer Data in connection with the Service Product; (b) be responsible for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service Product, and promptly notify Company of any such unauthorized access or use; and (e) provide Company access to and permission to use all information, materials, accounts, internal resources, facilities and personnel as necessary to complete the Professional Services.

3.3. Usage Restrictions.  Customer may not: (a) make the Service Product available to, or use the Service Product for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service Product any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service Product; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service Product, or otherwise attempt to gain unauthorized access to the Service Product or its related systems or networks; or (f) access the Service Product to build a competitive product or service ((a) through (f) herein, collectively, the “Restrictions”).

3.4. Third Party Products and Content.  If Customer enables Third Party Products and Content for use with the Service Product: (a) any use by Customer or its Authorized Users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) Company does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with the Service Product, and Company shall not be responsible for any use, disclosure, modification or deletion of such Customer Data.

4. Fees

4.1. Fees, Invoicing, and Payment.  Customer shall pay all fees specified in the Order. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable and payable in United States dollars. Customer shall be billed monthly for any additional fees such as: (a) unpaid late fees, (b) costs related to collecting unpaid fees and/or (c) any non-recurring fees incurred during the prior month. Such non-recurring fees may include, but are not limited to, any prorated amount for a partial term of a new Service Products or Professional Services added to an existing Customer and/or Authorized User account during the Subscription Term. All fees and payments for invoices issued must be received in accordance with the terms and dates specified in the Order before any services or access to Service Products will be granted, provided, and/or restored. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Company reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.

4.2. Proration and Additional Purchases. Any fees for Service Products or Professional Services provided for a partial month prior to the beginning of the Initial Terms are prorated based on the number of days remaining in the calendar month. Any fees for Service Products or Professional Services added to an existing order during the Term of this Agreement shall be prorated based on the time remaining in the existing Subscription Term, such that the term for the additional Service Product or Professional Service co-terminates with the existing Subscription Term at the time of the addition.

4.3. Taxes.  The fees are exclusive of, and Customer shall be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Company’s net income). Should any payment for the services provided by Company be subject to withholding tax by any taxing authority, Customer shall reimburse Company for such withholding tax. In the event Customer is tax-exempt, Customer shall provide a valid tax exemption certificate to Company within five (5) days of the Effective Date.

4.4. Automatic Payments. Unless another payment arrangement is approved by Company in advance and in writing, Customer authorizes Company to automatically charge its payment method when payment is due. This includes all applicable recurring fees and invoices. Customer agrees that it will not dispute Company’s recurring billing with Customer’s financial institution so long as the transaction corresponds to the terms of the order. Customer acknowledges that Company reserves the right to charge additional fees in the case of an insufficient funds transaction, including but not limited to, a credit card that has declined, expired, or otherwise failed to meet automatic payment obligations.

5. Intellectual Property Rights

5.1. Company Property.  Subject to the limited rights expressly granted to Customer hereunder, Company reserves and retains, and as between Company and Customer, Company exclusively owns, the rights, title, and interest in and to the Service Product, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Company under this Agreement other than as expressly set forth herein. If Customer or any Authorized User provides Company any feedback or suggestions regarding the Service Product, then Customer grants Company an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User. Unless otherwise set forth in the Order, Company retains exclusive ownership of all work product created by Company in connection with its performance of Professional Services.

5.2. Customer Data.  Customer grants to Company and its Affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third party service providers acting on Company’s behalf, such as Company’s hosting services provider, only: (a) to provide, maintain, and update the Service Product and/or Professional Services for Customer and Authorized Users; (b) to prevent or address service or technical problems or at Customer’s request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Company acquires no right, title, or interest under this Agreement in or to any Customer Data.

5.3. De-identified Data.  Customer acknowledges and agrees that Company may, during and after the Term, collect, use and analyze any de-identified information derived from the Customer Data (collectively, the “De-identified Data”) for Company’s lawful business purposes, including without limitation to improve and enhance the Service Product and for other development, diagnostic, and corrective purposes in connection with the Service Product.  Company may disclose De-identified Data solely in aggregate form in connection with its business. Notwithstanding anything to the contrary, De-identified Data shall be reasonably incapable of reidentification and shall not identify Customer, Customer’s customers, or any other individual or entity.

6. Confidentiality

6.1. Definition.  “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Customer includes Customer Data, Confidential Information of Company includes the Service Product (including its software and content, other than Customer Data) and the work product created from its performance of any Professional Services, and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information shall not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.

6.2. Protection.  The Receiving Party shall: (a) use reasonable care to protect the confidentiality of the Disclosing Party’s Confidential Information they may receive and/or gain access to; (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party shall provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party shall promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.

6.3. Compelled Disclosure.  The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.

7. Representations, Warranties, and Disclaimers

7.1. Mutual Representations.  Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitutes a valid and binding agreement of such Party.

7.2. Company Warranties.  Company warrants that: (a) the Service Product shall perform materially in accordance with the applicable Documentation; and (b) Company shall perform Professional Services in a professional manner.

7.3. Customer Warranty.  Customer warrants that it has obtained and shall maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to Company for its use as contemplated herein.

7.4. Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7.2, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.

8. Indemnification

8.1. Company Indemnification. Company agrees to indemnify, hold harmless, reimburse and defend Customer against any claim, cost, expense, or liability (including reasonable legal fees) incurred by or imposed upon Customer which arises out of or is based upon: (a) any breach of contract in performance by Company or its Affiliates in accordance with the agreement entered into by Company and Customer relating hereto; (b) any misrepresentation of Customer by Company in relation to Services provided by Company; (c) any infringement or misappropriation by Company of Customer’s intellectual property rights; and (d) any negligence or misconduct only to the extent that Company or its Affiliates or Authorized Users could have reasonably prevented such negligence or misconduct. However, Company shall not have any obligation under this section to indemnify Customer to the extent that such losses arise by virtue of Customer’s own breach of this agreement, gross negligence, or willful misconduct or fraud.

8.2. Customer Indemnification.  Customer shall defend Company and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Customer Data was collected or used by Customer in violation of applicable law, and Customer shall indemnify Company and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Customer shall have no liability under this Section to the extent any such lawsuit or proceeding arises from Company’s or any of its Affiliates’ negligence, misconduct, or breach of this Agreement.

8.3. Procedures. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the defense of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.

9. Limitation of Liability

9.1. Exclusion of Certain Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.2. Liability Cap.  EXCEPT FOR A PARTY’S  BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OR ANY UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA CAUSED BY A BREACH BY COMPANY OF ITS OBLIGATIONS UNDER THE DPA (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE (THE “GENERAL LIABILITY CAP”). THE GENERAL LIABILITY CAP SHALL NOT APPLY TO CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 4, CUSTOMER’S LIABILITY WITH RESPECT TO THE RESTRICTIONS, A PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9.3. Excluded Claims. Notwithstanding Section 9.2, in no event shall Company’s aggregate liability for all Excluded Claims exceed three times (3x) the General Liability Cap.  

9.4. Scope.  For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1, Section 9.2, and Section 9.3 shall apply with respect to all legal theories of liability, whether in contract, tort, or otherwise.  The Parties agree that the exclusions and limitations set forth in Section 9.1, Section 9.2, and Section 9.3 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.

10. Term, Termination, and Suspension

10.1. Term of the Agreement.  The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, shall continue until the expiration or termination of all active Orders, unless earlier terminated as permitted herein (“Term”).

10.2. Subscription Term. Subscription Terms for subscription-based Service Products (“Subscription Service Products”) and Professional Services are set forth in the AppMeetup Marketplace (each a “Subscription Term”) and/or in the specified Order. For Subscription Service Products and Professional Services available and ordered on a month-to-month or annual basis (including one-, two-, or three-year options), the Subscription Term begins on the order date and runs for the designated term (“Initial Term”). The Subscription Term automatically renews for successive terms equal to the Initial Subscription Term under the same conditions and financial commitments (“Renewal Term”) unless canceled prior to the beginning of the Renewal Term, or upon expiration or cancellation of this Agreement.

10.3. Suspension. Company may, upon prior written notice to Customer, suspend Customer’s or any or all Authorized Users’ access to the Service Product, in whole in part, if: (a) Customer or any Authorized User is using the Service Product in violation of this Agreement or any applicable law; (b) suspension of the Service Product is necessary, in Company’s reasonable discretion, to protect the security of the Service Product or the infrastructure of Company or its Affiliates; (c) suspension is required by applicable law; or (d) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are 7 days or more overdue.

10.4. Termination for Cause.  Either Party may terminate this Agreement effective after 30 days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such 30-day period. Upon any termination for cause by Customer, Company shall promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by Company, Customer shall promptly pay Company any unpaid fees covering the period remaining in the Term after the effective date of such termination. 

10.5. Effects of Termination.  Upon termination of this Agreement for any reason, (a) any amounts owed to Company prior to such termination and all completed but unpaid Professional Services fees shall be immediately due and payable, and (b) all rights granted to access and use the Service Product shall immediately cease to exist.  Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party shall promptly return any or all copies of Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.

10.6. Survival.  The sections titled “Protection of Customer Data,” “Fees,” “Intellectual Property Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions”, and any other sections which, by their nature would reasonably be considered to survive any termination of this Agreement, shall survive any such termination.

11. General Provisions

11.1. Entire Agreement. This Agreement, including all exhibits hereto and all Orders, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Customer’s purchase and use of the Service Product and any Professional Services. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit hereto or any Order, the terms of such exhibit or Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer ordering documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

     11.3. Force Majeure.  Except for payment obligations, neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action (each, a “Force Majeure Event”). If either Party’s nonperformance hereunder due to a Force Majeure Event persists for more than 30 days, either Party may immediately terminate this Agreement without charge or penalty upon notice to the other Party.   

11.4. Assignment.  Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Company. This Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.

11.5. Governing Law.  This Agreement, and any disputes arising out of or related hereto, shall be governed by the laws of the State of Texas, without reference to its conflicts or choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any claim or cause of action arising out of or relating to this Agreement shall only be brought in the state or federal courts located in Travis County, Texas, and the Parties agree to the exclusive personal jurisdiction of such courts.     

11.6. Notices.  All notices under this Agreement shall be in writing and sent via email. Notices to Company must be sent to getsupport@appmeetup.com. Notices to you will be sent to the email address which you provided when setting up your access to the Service Product and shall be deemed to have been duly given upon transmission.

11.7. Insurance. Customer shall carry and maintain insurance in the amounts and for the occurrences for which insurance is typically carried by entities in the same or similar business.

11.8. Relationship of the Parties; Third Party Beneficiaries.  The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.

11.9. Miscellaneous.  No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.” This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all counterparts together shall constitute a single agreement.

11.10. Modification. Company reserves the right to amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. and Customer’s continued use of the Service Product following the effective date of any such amendment will constitute consent to any such amendment.