Optinize Software-as-a-Service Agreement
This Software-as-a-Service Agreement (the “Terms”) apply to and govern the use of the Optinize Marketing Automation platform for organizing and managing your marketing efforts (the “Service”).
The following key points of these Terms are brought for your convenience only. They do not substitute the full Terms.
- Your relationship with us. These Terms are a binding agreement between the individual or entity identified during registration to the Service, and Optinize Inc., a company incorporated in Israel.
- Subject to these Terms, you may access and use the Service under a commercial subscription or a trial subscription (as applicable).
- Data. We are not responsible or liable for your reliance upon, or use of, the Output Data, your actions in connection with the Output Data or any consequences resulting therefrom. We will process, handle and use Your Data, Feedback and the Crowdsourced Data as explained in section 6 below and will take precautions to maintain the confidentiality of Your Data. We will not use Your Data (including your pricing information) for commercial purposes in any manner that can identify you (or your entity) or that through reasonable means can be attributed or traced back to Your Data.
- Fees. You will pay us, as of your registration to the Service, the periodic subscription fees, in accordance with the packages, schemes, amounts and subscription cycle presented to you upon registration.
- You may not use the Service in any of the objectionable manners explained in section 8 below.
- Term. Upon the end of each subscription cycle, your subscription will be automatically renewed for successive subscription cycles, unless you notify us by email at least 1 days before the end of the subscription cycle, that you wish to terminate your subscription. We may also terminate your subscription by providing you a prior notice of termination by email at least 3 days before the end of the subscription cycle.
- Intellectual property. All legal rights in the Service, including all intellectual property rights, are ours. Obviously, we don’t own Your Data.
- Disclaimer of warranty. The Service is provided for use “as is”. We disclaim all warranties and representations with respect to the Service, the output data and professional services (if any) that we provide.
- Limitation of liability. Both your own and our liabilities are limited as set out in section 10
- Indemnity. You agree to indemnify us in case of a third party complaint, claim, plea, or demand in connection with your breach of any provision or representation in these Terms.
- Law & jurisdiction. Use of the Service is governed by the laws of the State of Israel and any dispute in connection with these Terms or Service shall be submitted to the sole and exclusive jurisdiction of the competent courts in Tel Aviv, Israel.
- Your relationship with us
These Terms are a binding agreement between the individual or entity identified during registration to the Service (“you” or “your”), and Optinize Inc., a company incorporated in Israel (“we”, “us”, “our” or the “Company”).
In case of an entity, the individual signing-up to the Service for the entity confirms that they are over 18 years old and have the proper authority to legally bind the entity to these Terms. They also confirm they agree, on behalf of that entity, to be contractually bound by these Terms.
You must ensure that your employees, consultants and agents that you designate to use and deal with the Service for your benefit fully comply with these Terms. You are liable to us for all acts or omissions of those that use and deal with the Service for your benefit, as though you yourself had performed those acts or omissions.
- “Crowdsourced Data” means aggregated data, derivatives and insights derived from Your Data, which do not identify you (or your entity) and cannot with reasonable means be attributed or traced back to Your Data.
- “Dashboard” means the web-based interface through which you may access and use the functionality and features of the Service.
- “Feedback” means information or content concerning enhancements, changes or additions to the Service that you request, desire or suggest.
- “Fees” means the applicable service fees, as set forth in section 7.1.
- “Output Data” means the various reports, datasets and other information that the Service may generate, provide or make available to you, whether through the Service’s web-based interface, an output file, or otherwise.
- “Term” means the period of these Terms as specified in section 9
- “Your Data” mean data about your products (including pricing information, descriptions, user manuals and shipping specifications) that we collect, process or are exposed to in the course of providing the Service to you, as well as the Output Data and identifying information about you as a user of the Service and any Personal Data you have provided us.
- “Personal Data” mean the personally identifiable data of the users of your website, whether that data has been provided to us by you or directly by the users via the Service.
- As used herein, the term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase. All examples in the Agreement and all “i.e.” and “such as” notations, indicate an illustration, by way of example only, of the preceding phrase, without limiting its generality.
- Subject to these Terms, the completion of your registration to a commercial subscription of the Service and your payment of the applicable Fees, you may, during the Term: (i) access and use the Service strictly for your internal business purposes, and (ii) access, use and further disseminate the Output Data for any reasonable business purpose – all within the parameters and under the limitations of the subscription plan you confirmed upon your registration.
- Subject to these Terms and the completion of your registration for a trial subscription, you may, during the trial period (the duration of which is presented to you upon registration): (i) access and use the Service strictly for your internal business purposes in evaluating the Service, and (ii) access, use and further disseminate the Output Data for any reasonable business purpose – all on a limited trial basis with limited Service functionality. We reserve the right to determine, in our discretion, the scope and limitations of the Service functionality applicable to a trial subscription. Section 7 will not apply to a trial subscription.
- Registration and user account.
- You must be registered in order to use the Service. In order to apply for registration, you must complete our online form in which we will indicate the mandatory fields for completion. If you do not provide the required information in these fields, you will not be able to register. You must provide true, accurate and complete information. You may also register for the Service via third-party online platforms such as Shopify.
- Login to the Dashboard is authenticated with a password, which you should periodically change. You must maintain the confidentiality of your account login details.
- You are solely and exclusively responsible for Your Data, including its accuracy, completeness and correctness. You are the controller of the Personal Data and we will process the Personal Data solely for the provision of Services to you and based on your instructions. You are responsible to ensure you have a legal basis for the collection and processing of such Personal Data, that users have been given notice of the collection and processing of their Personal Data, and that you have obtained the users consent where required in accordance with applicable privacy laws. You are also responsible for all actions you take in relation to the Output Data; we are not responsible or liable for your reliance upon, or use of, the Output Data, your actions in connection with the Output Data, or any consequences resulting therefrom.
- You acknowledge and agree that we will process, handle and use (by ourselves or using trusted third party service providers such as cloud service providers) Your Data, your Personal Data, Feedback and the Crowdsourced Data as follows:
- We will use Your Data, your Personal Data, the Crowdsourced Data and the Feedback to provide the Service to you, conduct administrative and technical activities necessary to maintain and provide the Service, enforce these Terms and take any action in any case of dispute, or legal proceeding of any kind involving you with respect to the Service;
- We may use and share the Feedback and Crowdsourced Data in order to provide the Service, as well as value-added services, to you and other customers, to enhance the Service, to develop new products and services, for research and testing and for any other purpose we determine. You will not be entitled to any remuneration from us, for our use of such Feedback and Crowdsourced Data. We will not, however, use Your Data (including your pricing information) or your Personal Data for these purposes in any manner that can identify you (or your entity) or any of the data subjects the Personal Data relates to, or that through reasonable means can be attributed or traced back to Your Data or to the data subjects of the Personal Data you have provided us;
- If we are required, or reasonably believe we are required, by law, to share or disclose Your Data, or if such sharing or disclosure is required pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, we will endeavor to give you prompt notice of the requirement prior to such disclosure, to allow you, at your cost and expense, to intervene and protect its interests in Your Data.
- Subject to the foregoing, we will take precautions to maintain the confidentiality of Your Data, in a manner no less protective than we use to protect our own similar assets, but in no event less than reasonable care. We will not use or disclose Your Data except as described above or otherwise subject to your express permission. Our personnel, staff, advisors and consultants will access Your Data on a strict ‘need to know’ basis, subject to the terms herein.
- Upon termination of these Terms, we will return Your Data and delete Your Data from the Service. However, you are responsible for maintaining back-up copies of Your Data. The Service does not provide, and is not intended as, data back-up service.
- To the extent that Your Data (other than Output Data) is subject to legal protection (such as trade secrets, copyrights or privacy), then you are responsible to, and shall, obtain and maintain valid consents and permissions, as may be necessary under applicable law, in order to allow us to lawfully collect, handle, retain, process and use the Your Data in the manners and for the purposes set forth in these Terms.
- In consideration of the provision of the Service to you, you will pay us, as of your registration to the Service, the periodic subscription Fees (either monthly or yearly) and overage charges, in accordance with the subscription plan, package, schemes and amounts you confirmed on or after registration. Charges for overage will be billed per the overage charges of your subscription plan and according to your account’s overage measured and documented by the Service.
- Changes you make in your subscription package, scheme or amount will take effect in the subsequent subscription cycle.
- All Fees are quoted in US Dollars, unless expressly stated otherwise. Fees are payable through the payment methods we indicated when you subscribed. We may, from time to time, and without specific notice to you, add additional payment methods to the then-current payment methods, or cease to use previously supported payment methods. By using one or more payment methods to pay the Fees, you represent and warrant that you are lawfully permitted to use the selected payment method in connection with the Service. We may require additional information from you before completing payment transactions.
- You must keep the billing information you provided to us upon registration current, complete, and accurate, and notify us promptly in case of any change in your billing information.
- We will charge you for the applicable subscription Fees at the beginning of each subscription billing cycle, and overage charges (if such have accrued), following the end of each subscription billing cycle. By registering to the Service, you give your consent to purchasing a subscription to the Service, in accordance with the subscription plan, package, schemes and amounts you confirmed on or after registration, and to being billed for the applicable Fees, in addition to any applicable taxes (such as sales tax), and any surcharges or commissions charged by the payment processor or your selected payment method.
- All your payment obligations are non-cancelable and all amounts paid in connection with the Service are non-refundable. If you terminate your account and subscription, you are not entitled to any refund (pro-rata or otherwise, for any Fees you have paid for the terminated subscription during that subscription cycle. You are responsible for paying all Fees applicable to your subscription to the Service, whether or not you actively used, accessed or otherwise benefited from the Service.
- Payment methods are processed and handled through relevant third party payment processors, such as PayPal. Payment methods are therefore subject not only to these Terms, but also the terms and conditions of these third parties pursuant to your contractual relations with them. You acknowledge that the third parties processing any of the payment methods may charge you commission on their end of the transaction. We are not responsible for such commission, which is strictly within your contractual relations with the relevant payment processor.
- Fee that we are unable to charge through the payment method you provided is deemed an overdue Fee. Failure to settle any overdue Fee within twenty (20) calendar days of its original due date will constitute a material breach of these Terms. Without derogating from any other rights and remedies available to us under applicable law, overdue Fees will accrue interest at the rate of three-quarters of one percent (0.75%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. You will reimburse us for all legal costs and attorney fees we incur in the course of collecting your overdue Fees.
- We may modify, adapt, improve, or enhance the Service, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide you notice thereof. If we enhance the Service to include new or additional features or capabilities, we reserve the right to amend these Terms or the applicable Fees, and obtain your consent to such amendments. If you do not agree to the amendments in their entirety, we reserve the right to terminate these Terms at the end of the subscription cycle pursuant to subsections 1 and 9.3 below.
- Except as relevant law may otherwise require to be permitted, you may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Service, or otherwise attempt to discover its underlying code, structure, implementation or algorithms.
- You may not use the Service in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service.
- Except for Your Data and the Output Data, you may not offer the Service to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service or any part thereof.
- You may not perform or attempt to perform any of the following in connection with the Service:
- Breaching the security of the Service, identifying, probing or scanning any security vulnerabilities in the Service,
- Accessing data not intended for you, or accessing an account you are not authorized to access;
- Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Service;
- Working around any technical limitations in the Service;
- Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
- Collecting or processing information or data about the Service’s subscribers; or
- Sending any virus, worm, Trojan horse or other malicious or harmful code or attachment.
- Using robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.
- Use the Service to market inappropriate or illegal content and/or products and/or services, such as gambling and pornography.
- YOU MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
- WE MAY EMPLOY MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SERVICE, AS WELL AS MISUSE OF THE SERVICE. WE MAY SUSPEND OR TERMINATE YOUR ACCOUNT ON AND ACCESS TO THE SERVICE, WITHOUT PRIOR NOTICE, IF WE, IN OUR SOLE DISCRETION, BELIEVE THAT YOU HAVE ENGAGED IN FRAUDULENT OR ABUSIVE USE, OR MISUSE, OF THE SERVICE.
- Term and Termination
- These Terms commence when you apply to register to the Service, and terminate upon the termination, cancellation or expiration of your commercial subscription or your trial subscription to the Service (as the case may be, as per section 4 above).
- Upon the end of each subscription cycle, your subscription will be automatically renewed for successive subscription cycles, unless you notify us, by email to [insert address], at least 1 days before the end of the subscription cycle, that you wish to terminate your subscription. Your account and subscription will then be terminated upon the end of that subscription cycle.
- In addition, we may terminate your account on, and subscription to, the Service, upon the end of any then-current subscription cycle, by proving you a prior notice of termination by email (to the email you provided upon registration) at least 3 days before the end of the subscription cycle.
- In addition to the foregoing, either party may terminate these Terms immediately:
- In the event of a breach of these Terms by the other party, where the breach remains uncured for fifteen (15) days following written notice thereof from the non-breaching party to the breaching party, but if a breach is of a nature that cannot be cured, then the non-breaching party may terminate the terms immediately upon notice to the other party;
- If the terminating party is required to do so by law;
- If the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.
- Immediately upon termination of these Terms:
- We may terminate your account on the Service and will return and delete Your Data stored in our systems;
- You must cease any and all use of the Service;
- We will charge you for all then-outstanding Fees (if any) incurred in your final subscription cycle;
- Sections in these Terms that by their purpose of nature should survive termination of these Term, will so survive.
- Service quality; Service modifications; Disclaimer of Warranty and Limitation of Liability
- We will endeavor to have the Service operate properly. However, as a service that relies on back-end software, computer algorithms, cellular networks operators and third party networks and continuous internet connectivity, we do not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.
If we receive notice of any failure or malfunction, or if we become aware of them by ourselves, we will attempt to regain the Service’s availability as soon as practicable. However, such incidents will not be considered a breach of these Terms.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, YOUR INDEMNITY OBLIGATIONS HEREIN OR INFRINGEMENT OF OUR INTELLECTUAL PROPERTY RIGHTS, NEITHER YOU OR THE COMPANY, INCLUDING THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THESE TERMS, ANY USE OF, OR THE INABILITY TO USE THE SERVICE OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA OR ANY ERROR, INCOMPLETENESS, OR ANY INCORRECTNESS OR INACCURACY OF THE SERVICE OR THE OUTPUT DATA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, INFRINGEMENT OF OUR INTELLECTUAL PROPERTY RIGHTS, YOUR INDEMNITY OBLIGATIONS HEREIN OR LIABILITY ARISING FROM FAILURE TO PAY THE FEES DUE, THE TOTAL AND AGGREGATE LIABILITY EACH PARTY (INCLUDING THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF), FOR DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES PAYABLE TO US (IF ANY) FOR THE LAST 6 MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM OCCURRED.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
- ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE SERVICE AND HAVE THE SERVICE PROVIDE ACCURATE OUTPUT DATA, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY ABOUT THE RELIABILITY, EFFECTIVENESS, ACCURACY OR COMPLETENESS OF THE SERVICE OR OUTPUT DATA, THE EXPECTED BUSINESS OR CROP RESULTS, OUTCOME OR YIELDS OR ANY OTHER OPERATIONAL BENEFITS FROM UTILIZING THE SERVICE.
- THE SERVICE IS PROVIDED TO YOU “AS IS”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, WORKMANSHIP, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
- Support and maintenance
- During the Term, we, either directly or with the assistance of third parties, will provide you technical support for technical questions, problems and inquiries regarding the Service, during our business days and hours, and pursuant to the support scheme, hours and channels separately conveyed to you.
- We will attempt to respond to your technical questions, problems and inquiries within a reasonable time. However, we –
- May decline to provide such support for matters that we deem, at our sole discretion, to require unreasonable time, effort, costs or expenses;
- Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.
- For the purpose of our provision of technical support for your technical questions, problems and inquiries, you will cooperate, and work closely with us, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.
- Intellectual Property.
- The Service is a proprietary offering of the Company, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is made available for use and access, and is not sold or licensed.
- Except for your limited access to use the Service and the Output Data according to these Terms, these Terms do not grant you or assign to you, any license, right, title, or interest in or to the Service or the intellectual property rights associated with it. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service or any part thereof, and any work product, including computer code, graphic design, layout and the user interfaces of the Service, whether or not based on or resulting from Feedback, but excluding Your Data, are and will remain at all times, owned by, or licensed to us. for the avoidance of any doubt, you will retain any and all rights, title and interest, including copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to Your Data.
- Unless you notify us otherwise in writing, we may identify you as a customer and indicate you as a customer and user of the Service, on our website and in other online or offline marketing materials and press releases. We acknowledge that your company name and logo are protected by intellectual property rights. You grant us a worldwide, non-exclusive, non-transferable, royalty-free and free of charge, license, to use your name, logo, and website URL, on our website and in other online or offline marketing materials relating to the Service. We will use this content strictly in accordance with any usage guidelines you provide us an advance notice of.
- You agree to indemnify and hold us (and our directors, officers, employees, and subcontractors) harmless, upon our request and at your own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third party complaint, claim, plea, or demand in connection with your breach of any provision or representation in these Terms, including, but not limited to, a breach of your obligations under any privacy laws applicable to the collection and processing of your Personal Data.
- If we seek indemnification from you, we will provide you with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at your expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that we may settle or reach compromise on any such claim without your consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on you. We will have the right to participate, our own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of our own selection.
- Governing Law and Venue.
- Regardless of your place of residence, your jurisdiction of incorporation, the jurisdiction where you engage in business or where you access or use the Service from, these Terms and your use of the Service will be governed by and construed solely in accordance with the laws of the State of Israel.
- Any and all disputes, claims or controversies between regarding these Terms or the Service, which are not amicably resolved, shall be settled through binding arbitration (rather than in court) by telephone, online or based solely upon written submissions without in-person appearance, administered by the American Arbitration Association (AAA), under its Commercial Arbitration Rules (which are available at adr.org). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. However, you may lodge claims in small claims court if your claim qualifies.
- The Federal Arbitration Act and federal arbitration law apply to these Terms.
- There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
- Payment of filing, administration and arbitrator fees will be governed by the AAA’s Commercial Arbitration Rules. These fees will be shared equally by you and us, unless the arbitrator: (i) determines that the claims are frivolous, in which case the claimant shall bear all such fees arising from the frivolous claim; or (ii) determines that the fees should be allocated differently.
- You may opt-out of the above arbitration clause by emailing us to [insert email address], within 10 days of the first time whatsoever you have entered into these Terms, an opt-out notice that identifies yourself and clearly sets out your choice to opt out of dispute settlement by arbitration. In case of such opt-out, any and all disputes, claims or controversies between you and us regarding these Terms or the use of the Service, which are not amicably resolved, shall be subject to the exclusive jurisdiction and venue of the courts in Tel Aviv, Israel.
- Notwithstanding anything to the contrary in this section, either party may file: (a) an impleader claim against the other party in any court of competent jurisdiction; (b) in any court of competent jurisdiction a claim concerning the infringement (or alleged infringement) of intellectual property rights.
- Assignment. You may not assign these Terms without our prior written consent, which we shall not unreasonably withhold or deny. Any purported assignment without our prior written consent is void. To the greatest extent permissible by law, we may assign these Terms in their entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to you and without obtaining your further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of our equity or assets. By virtue of such assignment, the assignee assumes our stead, including all right, duties, liabilities, performances and obligations hereunder, and we are released therefrom.
- Relationship of the parties. The relationship between the parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
- Subcontracting. We may subcontract or delegate the performance of our obligations under these Terms, or the provision of the Service (or any part thereof), to any third party of our choosing, provided however, that we remain liable to you for the performance of our obligations under these Terms. You acknowledge and agrees that the technical means by which we provide the Service is at our sole discretion.
- Complete Terms and Severability. These Terms constitute the entire and complete agreement between you and us concerning the subject matter herein. These Terms supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of these Terms is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. These Terms may be modified or amended only in writing, signed by the duly authorized representatives of both parties.
- No waiver. Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of these Terms. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.