SaaS Terms of Service
These SaaS Terms of Service, including the Order Form, whether completed online or otherwise, which by this reference is incorporated herein (this “Agreement”), is a binding agreement between Alby AI, Inc. (“Licensor”) and the person or entity identified on the Order Form as the licensee for use and access to the Software (”Licensee”).
LICENSOR PROVIDES ACCESS TO THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE ORDER FORM/OTHER MEANS PROVIDED FOR ACCEPTANCE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT PROVIDE AUTHORIZATION FOR LICENSEE TO ACCESS THE SOFTWARE AND YOU MUST NOT ATTEMPT TO ACCESS THE SOFTWARE OR DOCUMENTATION.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means the following individual persons authorized to access the Software pursuant to the license granted under this Agreement: customers of Licensee’s e-commerce website, application, or other mutually agreed shopping platform (“Shopping Platform”), who access to the Software in connection with their shopping experience, and those individuals authorized to use the Software pursuant to the license granted under this Agreement, as set forth on the Order Form.
“Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Licensee” has the meaning set forth in the preamble.
“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensor” has the meaning set forth in the preamble.
"Monthly Unique Visitors” means those customers or potential customers of Licensee that visit Licensee’s Shopping Platform whether or not they access or use the Software.
“Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement, whether in paper format, or as part of the online ordering process.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Software” means the software services to which Licensee is purchasing a license for use and access, as expressly set forth in the Order Form.
“Term” has the meaning set forth in Section 11.
“Third Party” means any Person other than Licensee or Licensor.
“Update” has the meaning set forth in Section 7(b).
2. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to access and use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
(a) Access the Software in accordance with the Documentation for use in connection with Licensee’s Shopping Platform, whether owned or leased, and controlled by, Licensee. If Licensee operates more than one Shopping Platform, a separate license is required for each such Shopping Platform. All Software accessed by the Licensee, the output of which will be displayed on Licensee’s Shopping Platform:
(i) will be the exclusive property of the Licensor, and any third-parties that own any Third-Party Materials;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include “powered by” branding of Licensor, visible on Licensee’s Shopping Platform , which branding, and the placement thereof, shall be provided by Licensor as part of Licensee’s access to the Software.
(b) Access the Software in accordance with this Agreement and the Documentation, and for Licensee’s internal business purposes only.
(c) Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
(i) will be the exclusive property of Licensor;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
3. Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses can be found here [https://openai.com/policies]. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use the Software or Documentation beyond the scope of the license granted under Section 2;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation;
(g) copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(i) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein;
(j) use the Software or Documentation in violation of any law, regulation, or rule; or
(k) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
5. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
6. Compliance Measures.
(a) The Software is provided as a service, hosted by Licensor and contains technological copy protection and other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
(b) Licensor shall monitor the number of Authorized Users and Monthly Unique Visitors. If Licensor determines that the the number of Monthly Unique Visitors exceeds or exceeded the use permitted the agreed upon usage tier, as set forth in the Order Form, then the pricing shall automatically be adjusted in accordance with Section 10.
7. Maintenance and Support. Subject to the terms and conditions of this Agreement, Licensor will exercise commercially reasonable efforts to (a) provide support for the access and use of the Software to Licensee, and (b) keep the Software operational and available to Licensee, in each case in accordance with its standard policies and procedures.
8. Collection and Use of Data.
(a) Definitions. For the purposes of this Agreement, "Data" shall refer to any information, including but not limited to text, images, audio, video, and any other material, that the Licensee inputs, uploads, or otherwise transmits through the use of the Software, as well as information regarding use of the Software and about equipment on which the Software is installed or through which it is otherwise accessed. Data includes both Licensee Data and Licensor Data.
(i) As used herein, “Licensee Data” shall mean any proprietary raw data owned by Licensee independent of this Agreement, which Licensee may input into the Software. Licensee Data expressly excludes any Data to the extent processed by, resulting as an output of, or based on the usage of, the Software, including all questions and answers generated by the Software, which shall be considered Licensor Data;
(ii) A used herein, “Licensor Data” shall mean any Data input into the Software by or on behalf of Licensor and any aggregated and anonymized Data extracted or derived from the Software, including all aggregated and anonymized usage Data, statistical Data, transactional Data, interaction Data, metadata, market Data and other aggregated and anonymized Data, and Data used for training Licensor’s AI models as may be collected from user data and files.
(b) Scope and Use of Data. The Licensor shall collect Data, including Licensee Data, in a manner consistent with the functionality of the Software, and may use such Data, during the Term and thereafter, for any lawful purpose, including but not limited to:
(i) Providing access and use of the Software;
(ii) Processing such Data to generate outputs from the Software;
(iii) Enhancing and improving the Software and user experience;
(iv) Training, developing, and refining the Licensor's AI systems and algorithms, including to train the AI to perform tasks for which it is designed, such as data analysis, pattern recognition, and decision-making processes;
(v) To test and improve the AI's accuracy and efficiency;
(vi) Ensuring compliance with applicable laws and regulations;
(vii) Providing support and maintenance services;
(viii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software; and
(ix) Statistical, reporting and marketing purposes, including the right to create and market public indexes, analysis or insights created from such Data.
(c) Methods of Data Collection. The Licensor may collect Data through the following methods:
(i) Direct input from the Licensee within the Software;
(ii) Automated means, such as through tracking tools, cookies, and log files, when the Licensee, or its Authorized Users, interacts with the Software, including through use of the Compliance Measures as set forth in Section 6.
(iii) Voluntary submissions, such as feedback forms or customer support communications.
(d) Data Privacy and Security. The Licensor commits to implementing reasonable physical, administrative and technical safeguards designed to maintain the confidentiality and security of the Data collected by:
(i) Implementing industry-standard security measures to protect Data against unauthorized access, disclosure, alteration, and destruction;
(ii) Limiting access to Data to authorized personnel who are bound by appropriate confidentiality obligations; and
(iii) Complying with all applicable data protection laws and regulations.
(e) Licensee's Rights and Responsibilities. The Licensee agrees to:
(i) Provide the Licensor with accurate and lawful Licensee Data.
(ii) Obtain any necessary consents and permissions from individuals whose data may be collected, if applicable, and ensure Licensee has authorization to provide all Licensee Data to Licensor;
(iii) Refrain from inputting, and preventing Authorized Users from inputting, sensitive personal data unless explicitly agreed upon by both parties; and
(iv) Be responsible for all changes to and/or deletions of Licensee Data and the security of all passwords and other access protocols required in order the access the Software and Licensee’s account.
(f) Data Ownership and Licensing. Unless otherwise agreed upon, the Licensee Data provided by the Licensee shall remain the property of the Licensee and the Licensor Data shall remain the property of Licensor. The Licensee hereby grants the Licensor a non-exclusive, worldwide, royalty-free, perpetual license to use, reproduce, modify, and adapt the Licensee Data solely for the purposes outlined in this Agreement.
(g) Data Retention and Deletion. Licensor shall retain the Licensee Data for a period necessary to fulfill the purposes outlined in this Agreement or as required by law. Upon termination of this Agreement or at the Licensee's request, the Licensor shall delete or return all Licensee Data to the Licensee, except as otherwise permitted to be retained under this Agreement, subject to any legal or regulatory requirements.
9. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
10. Payment. All Fees are payable in advance in the manner set forth in the Order Form and are non-refundable. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
(a) Except as otherwise set forth in the Order From, Licensee shall pay the list price for the licenses hereunder for the desired pricing tier as set forth on the Order Form). Pricing is subject to increase during each Renewal Term.
(b) Except as otherwise set forth in the Order Form, if Licensee exceeds the authorized number of Monthly Unique Visitors per month, Licensee shall be notified and shall automatically be opted-in to the next pricing tier that will be prorated for the remainder of the month. Thereafter, the License Fee will revert to the original selected pricing tier.
11. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (“Initial Term”), and shall auto renew on Licensor’s standard terms (each a “Renewal Term”) unless either party provides written notice of non-renewal at least thirty (30) days prior to the then current term (the Initial Term and Renewal Term(s) referred to herein as the “Term”).
(b) Licensee may terminate this Agreement by ceasing to access and use the Software through Licensee’s Shopping Platform, and the Documentation, subject to full payment for the full contracted Term and providing written notice to Licensor.
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen days (15) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if Licensee (i) violates the Use Restrictions in Section 4, or (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, Licensor shall terminate access to the Software, and Licensee shall cease any access to, or use of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
12. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
(a) Solely with respect to Software for which Licensor receives a License Fee, Licensor warrants that is shall use commercially reasonable efforts to make the Software available and operational during the Term. Licensee’s sole remedy, and Licensor’s sole liability, in the case of breach of the warranty is to notify Licensor in writing and Licensor will, at its option either (i) take commercially reasonable steps to restore access and functionality to the Software; or (ii) provide a credit to Licensee for the period of unavailability. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranties set forth in Section 12(a)(i) and Section 12(a)(ii) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User, any Monthly Unique Visitor, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:
(i) modifies or damages the Software,; or
(ii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(d) Licensee Warranty. Licensee represents and warrants that any Licensee Data provided to Licensor in connection with access to and use of the Software shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Licensor’s system or data; or (e) otherwise violate the rights, including any applicable privacy rights, or other Intellectual Property Rights, of a third party. Licensor is not obligated to back up any Licensee Data outside of the normal course of business operations; the Licensee is solely responsible for creating backup copies of any Licensee Data at Licensee’s sole cost and expense. Licensee agrees that any use of the Software contrary to or in violation of the representations and warranties of Licensee in this section constitutes unauthorized and improper use of the Software
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION, INCLUDING ANY RESPONSES BY THE GENERATIVE AI ENGINE; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE FEES PAID HEREUNDER FOR THE SOFTWARE FOR THE PERIOD UP TO TWELVE MONTHS PRIOR TO THE EVENTS THAT ARE THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
14. Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
15. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
16. Miscellaneous.
(a) Licensor may reference Licensee’s name and logo in its marketing materials and customer lists.
(b) This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
(c) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
(d) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date personally acknowledged as received by the recipient if sent by facsimile or e-mail (electronic confirmation of transmission or receipt shall be insufficient notice); or (iv) on the fifth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 16(c)).
(e) This Agreement, together with the Order Form, all schedules and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(f) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(g) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(h) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(i) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and the offending provision shall be interpreted to the extent legally permissible to effectuate the original intent of the parties.
(j) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form and all Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(k) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.