Document 38876

FP Complete SAAS Agreement (“Terms of Service”)
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THIS SERVICE. BY CLICKING A BOX
INDICATING YOUR ACCEPTANCE OF THE ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU SIGNIFY YOUR
ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT WHICH GOVERNS YOUR ONGOING USE OF THE SERVICE AND
YOU ACKNOLWEDGE THAT YOU HAVE READ AND UNDERSTAND ITS TERMS. IF YOU ARE ENTERING INTO THIS
AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY
TO ACT ON BEHALF OF AND BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF
THIS AGREEMENT, OR DO NOT HAVE SUCH AUTHORITY, THEN YOU MUST NOT USE THIS SERVICE.
This Agreement, including these Terms of Service and all referenced appendices and documents (the
“Agreement”) is between FP Complete Corporation, a California corporation (“Company”) and the purchaser or
user of the Services who accepts the terms of this Agreement (“You” or “Your”). The effective date of this
Agreement (the “Effective Date”) is the earlier of the date that You accept this Agreement by clicking your
acceptance or the date that You first use the Services and may be amended only as set forth herein.
These Terms of Service were last updated on October 1, 2013.
1. Definitions.
“Academic License” has the meaning set forth in Section 2.2 below.
“Academic License Term” means the subscription period of the Academic License as specified in the Order Form.
“Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with
the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more
than fifty percent (50%) of the voting interests of the subject entity.
"Documentation" means Company's user manuals or other documentation regarding the Services, accessible via
Your account within the Services, as may be updated by Company from time to time.
“Fees” has the meaning set forth in Section 3 below.
"Intellectual Property Rights" means any and all patents, copyrights, moral rights, trademarks, trade secrets
and any other form of intellectual property rights recognized in any jurisdiction, including applications and
registrations for any of the foregoing.
"Order Form" means the ordering documents for Your use of the Services either (i) under a Trial License during
the Trial Period; (ii) under an Academic or Pro Bono License; or (iii) under a purchased subscription to the
Services, as indicated in the ordering documents, including addenda thereto, each of which are signed or
electronically delivered by You and accepted by Company from time to time. Order Forms shall be deemed
incorporated herein by reference.
“Paid Subscription License" means a paid subscription to the Services that You or an Affiliate purchases under
an Order Form (either the Professional or Personal Edition, subject to the applicable license terms described in
Section 2.1 below).
"Paid Subscription License Term" means the subscription period for the Paid Subscription License as specified in
an Order Form.
"Pro Bono License” has the meaning set forth in Section 2.3 below.
“Pro Bono License Term” means the subscription period of the Pro Bono License as specified in an Order Form.
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"Services" means the Company’s hosted software and/or services that are described on and ordered by You under
an Order Form.
“Support Services” means technical support services provided by the Company for the Services ordered by You
under an Order Form.
“Support Term” means the subscription period for Support Services specified on an Order Form for which you
have paid the applicable Support Services Fees.
“Trial License” means the right to use the Services during the Trial Period under Section 2.1 below during the
Trial Period.
“Trial Period " means the subscription period as specified in an Order Form during which You have the right to utilize the
Services for evaluation purposes without charge.
"Users" means Your authorized users identified by You on an Order Form for whom You have purchased
subscriptions to the Services. Users may only be Your employees or contractors authorized by You to access the
Services for Your benefit.
“Your Data” means any of Your information or data that You upload onto Company website or into Your Software
through the Services.
"Your Software" means your code that you upload into, develop or customize using the Services.
2. Licenses and Restrictions.
2.1 Licenses. Subject to all terms and conditions of this Agreement, Company hereby grants You the applicable
license to the Services as set forth on Your Order Form:
2.1.1 Trial Period License. During the Trial Period, a nonexclusive, nontransferable, nonsublicensable,
revocable and limited license to access and use the Services by the number of Users licensed under the applicable
Order Form solely for Your internal evaluation of the Services, and reproduce and use internally the Documentation
solely in connection with Your internal evaluation of the Services
2.1.2 Paid Subscription License Term License;
(i) Professional Edition. During the Paid Subscription Professional License Term, and subject to Your
payment of the applicable Fees (defined in Section 3.1), a nonexclusive, nontransferable, nonsublicensable,
revocable and limited license to: (a) access and use the Services by the number of Users licensed under the
applicable Order Form for commercial and non-commercial purposes; and (b) reproduce and use internally the
Documentation.
(ii) Personal Edition (i) During the Paid Subscription Personal Edition License Term, and subject to Your
payment of the applicable Fees (defined in Section 3.1), a nonexclusive, nontransferable, nonsublicensable,
revocable and limited license to: (a) access and use the Services by the number of Users licensed under the
applicable Order Form for non-commercial purposes only; and (b) reproduce and use internally the Documentation.
The Personal Edition Services may not be used to develop Your Software that will be (i) used by You, Your employer or
any third party for a commercial purpose; or (ii) sold, licensed or otherwise transferred by You, Your employer or any third
party in exchange for monetary or other consideration (together, “Commercial Development”). Non-commercial purposes
include use of the Personal Edition Services to become familiar with Haskell, to develop Your Haskell programming skills or
to develop early-stage sample Software, prototypes or demonstration software using Haskell. If you are engaged in
Commercial Development of Your Software You must upgrade to the Professional Edition Paid Subscription License.
2.1.3 Academic License. During the Academic License Term, a no-charge, royalty free, non-exclusive, nontransferable, non-sublicensable, revocable, limited license to: (a) access and use the Services by the number of
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Users licensed under the applicable Order Form solely for non-commercial purposes; and (b) reproduce and use
internally the Documentation solely for non-commercial purposes.
2.1.4 Pro-Bono License. During the Pro-Bono License Term, a no-charge, royalty free, nonexclusive,
nontransferable, nonsublicensable, revocable and limited license to: (a) access and use the Services by the number
of Users licensed under the applicable Order Form for commercial and non-commercial purposes; and (b)
reproduce and use internally the Documentation.
2.2. Published Data and Software License. Should You publish any Data or Software you developed utilizing the
Services you hereby grant all users of such Data or Software except Company a Creative Commons AttributionShare Alike License in such Data or Software. See http://creativecommons.org/licenses/by-sa/3.0/. For Company,
any Data or Software that You publish on a Public Page of the Company Website shall be governed by the Terms of
Use and Privacy Policy of the Company Website.
2.3 Users. Unless otherwise specified in the applicable Order Form: (a) the licenses are granted and the Services
are purchased as User subscriptions and may be accessed by no more than the specified number of Users in an
Order Form; and (b) additional User subscriptions may be added by You pursuant to the terms of, and at the Fees
specified in (as applicable), the Order Form. User subscriptions are for designated Users and cannot be shared or
used by more than one User but may be reassigned by You via the Services to new Users replacing former Users
who no longer require ongoing use of the Services. All Users must be under Your direction and control and use the
Services only for Your benefit and you shall be responsible for all actions of all Users under this Agreement.
2.4 Restrictions. You acknowledge that the Services constitute valuable property and trade secrets of Company
and You agree not to do nor allow any of the following, and that no User shall do nor allow any of the following,
without the express written authorization of Company: (a) make the Services available to any third party other
than You and Your designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of any
part of the Services; (c) decompile, reverse engineer or reverse assemble any portion of the Services, or attempt
to discover any source code or underlying ideas or algorithms of the Services; (d) access the Services in order to
build a competitive product or service, or copy any features, functions or graphics of the Services; (e) use the
Services to store or transmit material in violation of third party privacy rights; (g) transmit unsolicited commercial
or non-commercial email via the Services; (f) use the Services to store or transmit malicious code; (g) interfere
with or disrupt the integrity or performance of the Services or third party data contained therein; (h) attempt to
gain unauthorized access to the Services or related systems or networks; (i) remove or alter any trademark, logo,
copyright or other proprietary notices associated with the Services; or (j) upload onto the Services any data or
software in violation of any Intellectual Property Rights of any third party. In addition, the Services shall not be
used by You or any User as (i) a computational or CPU resource (ii) a data storage resource, (iii) a device for
sending or receiving communication or network traffic other than that required for Your use of the Service, or (iv)
for any unlawful purpose. Documentation associated with the Services may include additional restrictions or
limitations on the use of the Services, including, without limitation, limitations on storage space in the Services,
and You and each other User agree to comply with any such restrictions or limitations. Company has the right, but
not the obligation, to monitor Your use of the Services to determine compliance with the terms of this Agreement.
Company reserves the right, without limiting any other right or remedy available at law, in equity, or under this
Agreement, to immediately suspend Your access (and therefore, all Users access) to and use of the Services and/or
immediately terminate this Agreement if Company determines, in its sole discretion, that You are engaging (or
have engaged) in any of the prohibited activities set forth in this Section 2.4.
3. Fees and Payment.
3.1 Subscription Fees. During the Paid Subscription License Term, You will be charged the fees for Users specified
in an applicable Order Form ("Subscription Fees"). Except as otherwise specified herein or in an Order Form: (a)
Subscription Fees are quoted and payable in United States dollars; (b) Subscription Fees are based on Paid
Subscription Licenses purchased and not actual usage; and (c) payment obligations are non-cancelable and Fees
paid are non-refundable.
3.2 Fees. All fees set forth on an Order Form that apply to the Services (including but not limited to Support
Services fees and Subscription Fees) shall be paid by You as set forth in this Section 3 (together, the “Fees”).
3.3 Fee Changes. Company, in its discretion, reserves the right to change Fees for Services at any time. You
acknowledge that Company may, from time to time, add additional features or functionality to the Services, and
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that Your access to and use of such additional features and functionality may require payment by You of additional
Fees. Any Fee changes shall only be applied in Your next Subscription Term provided You continue to subscribe to
the Services; You shall pay your current Fees until the new Fees take effect in Your next Subscription Term.
3.4 Payments. You will pay Fees via credit card or by other means specified by Company in an applicable Order
Form. If You are making payments for Fees via credit card, You will provide accurate payment information, and You
hereby authorize Company to charge such credit card for all Fees in an applicable Order Form for the initial Paid
Subscription License Term and any renewal thereof. Such charges shall be made in advance, either annually or in
accordance with any different billing frequency stated in the applicable Order Form. For payment of Fees by any
other method, Company will invoice You in advance of the provision of applicable Services and otherwise in
accordance with the relevant Order Form. All payments for which invoices are delivered are due within thirty (30)
days of the date of the invoice. If Company has not received payment of Fees by the applicable due date on an
invoice, then Company may: (a) assess a late fee of one and one-half percent (1.5%) per month, or the maximum
rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b)
condition future Services and Order Forms on payment terms shorter than those specified herein. If You have
elected to pay Fees via credit card and the credit card is charged back to Company or if any Fees invoiced to You
are not paid within thirty (30) days of invoice, Company may: (i) with respect to chargebacks, cease charging Your
credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any
Fees payable; (iii) immediately suspend Your Services until payment is made; and/or (iv) immediately terminate
the applicable Order Form for which Fees were due and/or terminate this Agreement.
3.5 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by
any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all
Taxes (except those based on Company's income) associated with the Services purchased hereunder, and will pay,
indemnify and hold Company harmless from any Taxes and any costs associated with the collection or withholding
thereof, including penalties and interest.
4. Feedback and Intellectual Property Rights.
4.1 Feedback. In consideration of Your access to the Services, (i) You agree to notify Company of any problems,
bugs, usability or performance or other issues You discover with respect to the Services; and (ii) You may share
with the Company suggestions, improvements, ideas for enhancements or other feedback regarding the
Services(together, (i) and (ii) are “Feedback”). All such Feedback shall be owned exclusively by the Company and
You hereby assign to Company all right, title and interest in and to such Feedback and all Intellectual Property
Rights therein.
4.2 Company Ownership. As between the parties, Company owns: a) all right, title and interest in and to the
Services, all Company software and systems accessed through the Services, all documentation, usernames or
storage or other resources that may be assigned to You; b) all modifications, improvements and derivatives of any
of the foregoing, and including without limitation any invention or discovery related to the Services that may be
made as a consequence of Your using the Services; c) all Feedback described in clause 4.1 above; and d) any and
all Intellectual Property Rights embodied in all of the foregoing, and you hereby assign all such rights therein to
Company. You also acknowledge that the trademarks, logos and service marks (“Marks”) displayed by Company in
connection with the Services are the property of Company or other third parties. You are not permitted to use
these Marks without the prior written consent of Company or such third party which may own the Mark.
4.3 Your Data and Software. If in connection with Your use of the Services You upload any of Your Data into the
Services or upload, develop or customize any of Your Software using the Services, then as between You and the
Company, You shall own Your Data and Your Software. Any Data or Software that You publish on a Public Page of
the Company Website shall be governed by the Terms of Use and Privacy Policy of the Company Website. You
grant Company permission to access your account, login credentials, Your Data and Software strictly for the
purposes of performing necessary Support Services or troubleshooting on your account. Company respects the
privacy of your account information, Your Data and Software, and takes active measures to protect such
information in accordance with the security measures described in Company’s Privacy Policy.
4.4 Reservation of Rights. Company reserves all rights not expressly granted in this Agreement, and no licenses
are granted by Company to You under this Agreement, whether by implication, estoppel or otherwise, except as
expressly set forth in this Agreement.
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5. Support Services. Company will provide to You the Support Services You have ordered on your Order Form
during the Support Term paid for by You.
6.
Warranties.
6.1 Company Warranties. Company warrants that it (i) is a corporation, limited liability company or limited
partnership validly existing and in good standing under the laws of the state of its organization, and has full power
and authority to enter into this Agreement and to carry out the transactions contemplated herein; (ii) this
Agreement has been duly and validly executed and delivered by Company and, once executed and delivered by
Customer, constitutes the legal, valid and binding obligation of Company; (iii) the terms and conditions of this
Agreement and the execution of this Agreement by Company do not violate, conflict with or result in a breach of
any agreement, contract, license or instrument to which Company is a party or which would affect Company’s
obligations or the rights of Customer under this Agreement.
6.2. WARANTY DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 6.1 ABOVE, THE SERVICES ARE PROVIDED “AS
IS” AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING,
COMPANY DOES NOT MAKE ANY WARRANTIES THAT ITS SOFTWARE OR SERVICES ARE FREE FROM ANY BUGS,
ERRORS OR OMISSIONS AND YOU ACCEPT THE ENTIRE RISK ARISING OUT OF YOUR USE OF OR INABILITY TO
USE THE SERVICES. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
6.3. Your Warranties. You warrant that: (a) You have the legal power to enter into this Agreement, and doing so
will not violate any other agreement to which You are a party; (b) You have the right and authority and has
obtained all necessary consents required to use Your Data and/or Your Software and any other of Your content or
data used in connection with the Services; (c) use of Your Data and Your Software in connection with Your use of
the Service shall not infringe the Intellectual Property Rights of any third party; and (d) You will comply with all
applicable Laws in Your performance of this Agreement.
7. Indemnity.
7.1 Indemnity Claims. You will defend, indemnify and hold Company and its directors, officers, employees,
suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened claims,
suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements,
liabilities, losses, costs and expenses (including but not limited to reasonable attorneys' fees) (collectively,
"Claims") arising out of or relating to: (a) You, or Your Affiliates' or its or their or Your Users' breach of this
Agreement; (b) You or Your Affiliates' or its or their or Your Users' negligence or willful misconduct; and (c) Your
Data or Your Software.
7.2 Procedure. With respect to Your indemnity obligations arising pursuant to Section 7.1, Company shall promptly
notify You when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve
You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the
delay. Company shall reasonably cooperate with You in the defense of such Claim at Company's expense. Company
may participate in the defense at its option and expense; provided that You shall have the right to control the
defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of
counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of
Company, including any settlement that includes (i) admission of liability or wrongdoing by Company; (ii) payment
of any amounts not covered by Your indemnity obligations; (iii) actions that affect Company's Intellectual Property
Rights, may be made without the express written consent of Company, which may be withheld in the sole
discretion of Company; and provided further that in conducting such defense or settling such claim or action, You
shall not disclose or use in an improper or manner not authorized under this Agreement the confidential
information of Company without Company's prior written consent.
8. Limitations of Liability.
8.1 Exclusion of Consequential and Related Damages. IN NO EVENT WILL COMPANY BE LIABLE TO YOU, YOUR
AFFILIATES, USERS OR ANY OTHER THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE,
LOSS OF GOODWILL, LOSS OF YOUR DATA OR YOUR SOFTWARE (OR ANY DATA RELATED THERETO) OR ANY
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INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR
OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.2 Limitation of Liability. IN NO EVENT WILL COMPANY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT EXCEED IN THE AGGREGATE THE GREATER OF $100.00 OR THE AMOUNTS PAID BY YOU TO
COMPANY DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND
THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
8.3. Time Limit on Claims. REGARDLESS OF ANY STATUTE OR LAW THAT CONTAINS A LONGER STATUTE OF
LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION AGAINST COMPANY ARISING OUT OF OR RELATED TO USE OF
THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF
ACTION ARISES OR BE FOREVER BARRED.
9. Term and Termination.
9.1 Term of Agreement. The term of this Agreement commences on the Effective Date and, unless earlier
terminated, continues for the duration set forth in the applicable Order Form (“Subscription Term”). Except as
otherwise specified in the applicable Order Form, and provided You timely pay any Fees due to renew the Services
(as set forth in the Order Form or in Company’s notice of renewal to you), each Subscription Term shall
automatically renew for additional periods equal in duration to the then-expiring Subscription Term, unless either
party gives the other notice of non-renewal at least 30 days prior to the end of the expiring Subscription Term for
annual subscriptions, and 7 days for monthly subscriptions.
9.2 Termination. Either party may terminate this Agreement or any individual Order Form as follows: (a) for cause
if the other party breaches this Agreement or an Order Form and does not remedy such breach within thirty (30)
days after its receipt of written notice of such breach; (b) immediately if the other party: (i) terminates its business
activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an
assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar
authority; or (c) in the case of Company, immediately if You do not pay the Fees when due as described in Section
4 or for any other material breach by You of this Agreement.
9.3 Transition of Your Data and Software. For a period of thirty (30) days following termination or expiration of this
Agreement, You may retrieve Your Data and Software from the Services. If after such thirty (30)-day period you
have not downloaded or retrieved Your Data and Your Software from the Service, then unless prohibited by
applicable laws, Company may delete or erase any and all of Your Data and Your Software stored by You or
maintained by Company in connection with the Services. Except as provided in this Section 9.3, Company shall
have no obligation to continue to store or permit You to retrieve any of Your Data following termination of this
Agreement.
9.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Your right to use the Services
shall cease, and Company shall have no further obligation to make the Services available to You; (b) all rights and
licenses granted to You under this Agreement will immediately cease; (c) except as provided in Section 9.3,
Company will have no obligation with respect to any of Your Data or Software; and (d) You will pay any unpaid
Fees payable for the remainder of the Paid Subscription License Term under any applicable Order Form in effect
prior to the termination date.
9.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1
(Definitions), 2.3 (Restrictions), 3 (Fees and Payment), 4.2 (Ownership), 7 (Indemnity), 8 (Limitations of Liability),
9.3 (Transition of Your Data and Software), 9.5 (Survival) and 10 (Miscellaneous).
10. Miscellaneous.
10.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and
other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (a) each party
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represents that it is not named on any U.S. government list of persons or entities prohibited from receiving
exports; and (b) You shall not permit access to or use of the Services in violation of any U.S. export embargo,
prohibition or restriction. If You access the Services from outside the United States, you do so at your own risk
and are responsible for compliance with the laws of Your jurisdiction.
10.2 Choice of Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the
State of California, without regard to its conflict of laws provisions. The parties irrevocably consent to the exclusive
jurisdiction of the state and federal courts in San Diego County, California for the resolution of any disputes or
conflicts arising out of or related to this Agreement.
10.3 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed
or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier;
(b) sent by email or facsimile; or (c) mailed by registered or certified mail, return receipt requested, postage
prepaid, to the following:
Notices to You: to the address or email contact information set forth within Your account.
Notices to the Company: to FP Complete Corporation, Attn: V.P. Sales & Marketing; Email:
[email protected]
10.4 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee,
employee, representative, owner or partner of the other party, and the relationship between the parties will solely
be that of independent contractors.
10.5 Publicity. Subject to your prior review and approval, Company may reference You and Your use of the
Services in its marketing materials and Website, including but not limited to: 1) the right to display Your logo, 2)
obtaining quotes regarding the Services, 3) producing case studies and customer reference videos, 4) arranging
media interviews and speaking opportunities at industry events, and 5) other normal promotional activities agreed
to between Company and You.
10.6 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned
or delegated by You by operation of law or otherwise, without the prior written consent of Company. This
Agreement may be assigned or transferred by Company without Your consent. Subject to the foregoing, this
Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives,
heirs, administrators, successors and permitted assigns.
10.7 Waiver, Severability. Failure of Company to enforce a right under this Agreement shall not act as a waiver of
that right or the ability to later assert that right relative to the particular claim involved, nor shall any course of
conduct between Company and You or any other party be deemed to modify any provision of this Agreement. If
any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be
reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or
enforceability of this Agreement.
10.8 Entire Agreement; Amendment. This Agreement is the entire agreement of the parties regarding the subject
matter hereof, superseding all other agreements between them, whether oral or written. Company will not accept
any counter-offers to these Terms of Service and all such offers are hereby categorically rejected. Company may
update or change these Terms of Service from time to time in its sole discretion without notice to You, and it is
Your responsibility to check back often so You are aware of Your current rights and responsibilities. The most
current version will be posted by Company on its Services site. Your continued use of the Services after any update
or change to these Terms of Service constitutes Your binding acceptance of the updated Terms of Service. If at
any time the Terms of Service are no longer acceptable to You, You should immediately cease use of the Service.
All headings contained in this Agreement are inserted for identification and convenience and will not be deemed
part of this Agreement for purposes of interpretation. All remedies set forth in this Agreement are cumulative.
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