TERMS OF SERVICE


IMPORTANT READ CAREFULLY: THESE TERMS OF SERVICE ARE BINDING AND ENFORCEABLE BETWEEN YOU (“CUSTOMER”) EXECUTING THIS AGREEMENT AND mKonnekt LLC. “CUSTOMER” REFERS TO THE ENTITY OR ORGANIZATION USING SERVICES AND/OR PRODUCTS DESCRIBED IN THIS AGREEMENT (THE “SERVICES”). 


THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.


EFFECTIVE DATE FOR THESE TERMS OF SERVICE IS WHEN THIS AGREEMENT IS SIGNED. mKonnekt LLC MIGHT PERIODICALLY UPDATE THE TERMS OF SERVICE AND THE CUSTOMER IS ADVISED TO CHECK THE AGREEMENT PERIODICALLY FOR THESE UPDATES. CUSTOMER’S CONTINUED USAGE OF THE SERVICES AFTER mKonnekt’s CHANGES WOULD AUTOMATICALLY CONSTITUTE ACCEPTANCE OF THESE UPDATES


This Retailer Customer Agreement (“ Agreement”) is effective when the Customer installs the app from the Clover market. The parties agree as follows: 


  1. DEFINITIONS
  2. “Awareness 2 Advocacy (KOUPONS & DISCOUNTS) Platform” is Supplier’s marketing & technology platform which includes software, applications, processes and technology used to provide Services to the Customer.
  3. “Account” means a role within the KOUPONS & DISCOUNTS Platform that can perform some activities based on the level of access provided to the role.
  4. “Agreement” means a contract between the Customer and Supplier to provide Services for a Contract Term.
  5. “Authorized User” means any person that the Customer authorizes to use the Services through the KOUPONS & DISCOUNTS Platform by signing up for an Account.
  6. “Brands” means any third party that supplies, stores & sells good and products within the Customer’s Location.
  7. “Contract Term” means the length of the time that Supplier provides Services to the Customer.
  8. “Coupon & Discount Values” means the discounts offered by different Brands or by the Customer to the consumer under different Discount Programs as detailed in the Discount Program descriptions.
  9. “Customer Data” means any data collected or provided on the KOUPONS & DISCOUNTS Platform, on different Online Presence platforms, PoS Systems as part of the Customer’s daily operations.
  10. "Documentation" means any user manuals, online resources, or other documentation made available to Customer with respect to the Services in electronic or paper format, as may be amended or added to from time to time by Supplier.
  11. 1.10.“Discount Programs” means offers and coupons that Brands and /or Customer offer to end consumers through Supplier’s KOUPONS & DISCOUNTS Platform.
  12. 1.11.“Implementation Services” means implementing of the KOUPONS & DISCOUNTS Platform including services related to data analytics, marketing services for the Location and reporting of the results.
  13. 1.12.“Integrations” means the ability of Supplier’s KOUPONS & DISCOUNTS Platform to integrate into different systems operating at the Customer’s Location.
  14. 1.13.“Location” is defined as Customer’s store or sites.
  15. 1.14.“Online Presence” means Customer’s Location presence on different social media and online platforms.
  16. 1.15.“Order” means a selection of services that the Customers wishes Supplier to perform at its Location.
  17. 1.16.“Point of Sale (PoS) System” means a third party platform that is used by the Customer to perform the Customer’s business operations including inventory & employee management, selling of products and processing credit card/cash payments and customer data management.
  18. 1.17.“PoS Data” means collective data of the Customer’s location operations processed by the PoS System including inventory, customer, payment (first six & last four digits), transactional, employee and location information.
  19. 1.18.“Services” means collectively the KOUPONS & DISCOUNTS Platform, installation & deployment and management of services provided to the Customer as per the Order selection.
  20. 1.19."Term" is defined in Section 11 below.


  1. SERVICES
  2. As part of the Agreement, between the Customer and Supplier, Customer chooses to implement KOUPONS & DISCOUNTS Platform application(s) along with Implementation Services per its Order selection.
  3. Supplier will provide all the required documentation, along with training, to the Customer to use the KOUPONS & DISCOUNTS Platform.
  4. Supplier, depending on the Agreement, will provide marketing guidance to the Customer. The Customer is responsible for acting on the guidance and to providing approvals to Supplier for offers and coupons.
  5. Supplier has the right to revise KOUPONS & DISCOUNTS Platform functionality along with its Implementation Services. These changes would be communicated to the Customer through multiple channels and the Customer can terminate the Agreement, if the revisions materially reduces the functionality, within 30 days of this notice receipt.
  6. Customer agrees to provide access to its systems including PoS System, Social Media, online platforms and others to Supplier to implement the KOUPONS & DISCOUNTS Platform and Implementation Services on a need basis. Supplier will make a request to the Customer for this access, and it is the Customer’s responsibility to provide timely access to these systems for Supplier to implement the Services.


  1. CUSTOMER RESPONSIBILITIES
  2. Customer may only use the Services as explicitly set forth in this Agreement for the agreed Location(s).
  3. Customer is solely responsible for determining whether the Services meets its business and legal requirements.
  4. Customer will ensure access to its systems and online platforms to Supplier during the Contract Term.
  5. Customer agrees to honor any coupons & offers as per the terms laid out in the Discount Programs.
  6. Customer agrees to participate in Brand Discount Programs depending on the Brand’s requirements.
  7. Customer is solely responsible for applying the Coupon & Discount Value at the transaction time.
  8. Customer is responsible to inform Supplier& Brand in the case of a discrepancy in the Coupon & Discount Value at the transaction time. Supplier, along with the Brand, will work to rectify the discrepancy at the earliest in case the discrepancy falls within a programmatic error.
  9. Customer will acknowledge that Supplier and its affiliates, are not legally or financially responsible for any Coupons & Discount Value discrepancies.
  10. Customer will pay Supplier any fees associated with usage of KOUPONS & DISCOUNTS Platform and Implementation Services at the beginning of each period for next period’s services.
  11. 3.10.Acceptable Use. Customer will not: (a) use the KOUPONS & DISCOUNTS Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform. In the event that it suspects any breach of the requirements of this Section 3, including without limitation by Authorized Users, Supplier may suspend Customer's access to the Platform without advance notice, in addition to such other remedies as Supplier may have. Unauthorized Access. Customer will prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Customer will notify Supplier immediately of any known or suspected unauthorized use of the Platform or breach of its security and will use best efforts to stop and mitigate said breach.
  12. 3.11.Compliance with Laws. In its use of the KOUPONS & DISCOUNTS Platform, Customer will comply with all applicable laws, including, without limitation, laws governing the protection of personally identifiable information, proprietary information and trade secrets and any other laws, guidance or industry standards applicable to the protection of Data. Customer recognizes that not all features and functionality of the Services may comply with the laws of its jurisdiction and agrees to ensure that its own use of the KOUPONS & DISCOUNTS Platform complies with applicable law.
  13. 3.12.Authorized Users & KOUPONS & DISCOUNTS Platform Access. Customer is responsible and liable for: (a) Authorized User’s use of the KOUPONS & DISCOUNTS Platform, including without limitation unauthorized conduct and any conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Platform through Customer's or any of its Authorized Users’ account(s), whether authorized or unauthorized.


  1. DATA
  2. Customer agrees to provide Supplier with different sets of “Data”, including but not limited to PoS data, Payment Processing data, Online data, and Consumer data. This data will be provided onto Supplier, through the KOUPONS & DISCOUNTS Platform, on a daily basis.
  3. Customer agrees that Supplier will use Customer’s online presence data, along with other Data, to build anonymous customer models and marketing models that can then be used for Supplier’s commercial purposes.
  4. Customer represents and warrants that it has all consents, permissions and licenses necessary to provide the Data, described in Sections 4.1 & 4.2 to the Supplier. Further, Customer acknowledges that Supplier will use the Data, process the Data for Supplier’s own commercial purposes, as well as process the data for third party use.
  5. Thru this agreement, Customer hereby grants a non-exclusive, transferable, and licensable royalty-free worldwide license to Supplier to use, edit, copy, derive workable products that can be used to implement KOUPONS & DISCOUNTS Services at the Customer location and for Supplier’s commercial purposes. Further, the Customer’s signing of this agreement, acknowledges and agrees that Supplier can anonymize the data or can collaborate with third party companies in order to commercialize the data. The Customer authorizes that the third parties can process the data, modify, reproduce or commercialize the data for its own work product or that the data can be used by other third parties. Customer authorizes Supplier and third-party companies to use the collected data in perpetuity. All rights to the processed data by Supplier & third-party companies would be owned by Supplier and that Customer assigns all rights, title and interest in the Data to Supplier. Supplier has the right to aggregate Data across different Customers and geographic regions and process the data as described above. The Customer authorizes that Supplier and third-party companies can use this aggregate data across different Customers in their work product.


  1. COUPON & DISCOUNT PROGRAM
  2. Customer can design in-store coupons using the KOUPONS & DISCOUNTS Platform or receive the design from Supplier as part of the Services offered by Supplier. Customer should train their staff members to enable the end consumers to redeem the in-store coupons. Supplier is not liable for any discrepancies with regard to the coupon generation, distribution and redemption. It is the Customer’s responsibility to make sure that the in-store coupons are generated and distributed in a timely fashion.
  3. Customer should communicate any discrepancies in the in-store program to Supplier. The communication can be via email, phone or through the support channel. Supplier upon receipt of this communication will work with the Customer to rectify the issue.
  4. On a periodic basis as part of the KOUPONS & DISCOUNTS offering, Supplier will work with Brands to offer discounts at Customer’s location. These are optional discount programs that Customer might want to participate in based on their contract with the Brands. The terms and conditions on these Brand offering vary, and it is up to the Customer to verify and agree to these terms (opt-in program). Some of these discount programs require an explicit opt-out notification from the brand and it is the Customer’s choice to agree to the terms and conditions.
  5. Customer agrees that by participating in the Brand’s Coupon & Discount program, any financial disbursals related to the discount program would come from the Brands through Supplier. In case of any shortfalls on the Brand’s behalf, Customer agrees that Supplier is not liable to meet the shortfall and Customer will approach Brands solely to reimburse the shortfalls.
  6. In some cases, the Brand might co-opt the Customer to issue the coupon or discount program. In this situation, the Customer and Brand are both responsible to meet the coupon and the discount program costs including the discounts offers to the consumers, processing costs and any other related costs. Customer agrees that Supplier is not responsible for any of the incurred costs as part of this joint program.
  7. Brands, through Supplier, will route the coupons and discount program disbursals. All the funds from Supplier will be processed through the account’s setup by the Customer during the setup process. It is not Supplier’s responsibility to verify the account details of the Customer. If Supplier is unable to process the disbursals after repeated attempts, any un-disbursed amounts after 12 months will become property of Supplier.


  1. PAYMENT
  2. Customer agrees to make timely payments of all fees associated with the use of Supplier’s services. Customer authorizes Supplier (or its third-party payment processor) to process the payment information provided by Customer (such as a credit card number and expiration date) necessary to affect such payment. Customer recognizes that the Services may have recurring payment obligations and that Customer’s payment method may be charged on a recurring basis at the beginning of each payment period for the next period’s Services. Supplier reserves the right to suspend the Services if Customer fails to make timely payment of all fees as required by this Section.


  1. PROPERTY RIGHTS
  2. Supplier and its licensors have and retain all right, title and interest in the Services, any modifications to, enhancements or derivative works related to the services. Supplier also retains all intellectual property rights related to the services provided by Supplier. Customer shall not attempt in any way to alter, re-engineer, reverse engineer, tamper with, or otherwise misuse the Services.
  3. Customer hereby grants Supplier a non-exclusive, transferable, and sublicensable royalty-free right to use Customer’s company name, any associated trademarks, logos and other identifying information for Supplier’s advertising and marketing purposes on different platforms and publications.


  1. CONFIDENTIALITY
  2. For purposes of this Agreement, the term “Confidential Information” means any business, technical or other confidential, non-public and/or proprietary information, regardless of the medium of conveyance (whether in oral, written, graphic, electronic, or any other form, or effected through inspection, review, or analysis), obtained in the course of negotiating or performing this Agreement which originates with a party (the “Disclosing Party”) and comes into the possession of the other party (the “Receiving Party”), including without limitation: the terms, conditions and existence of this Agreement, software, code, trade secrets, inventions, pricing, algorithms, know-how, business systems, technical and financial information and practices, plans, proposals, forecasts, personnel files and information, lists, statistics, passwords and other access codes or other such information of a Disclosing Party.
  3. Unless the Disclosing Party agrees in writing, the Receiving Party agrees that all such Confidential Information shall be treated in confidence, shall be used by the Receiving Party only for the purposes of performing the Receiving Party’s obligations and shall be disclosed only to those employees or contractors whose duties reasonably require access to such information and have agreed to comply with the terms of this section. The Receiving Party shall protect such Confidential Information from unauthorized disclosure with the same degree of care, which care shall not be less than reasonable care, that the Receiving Party exercises to protect its own Confidential Information.
  4. Confidential Information shall remain the property of the party from or through whom it was provided. Notwithstanding the foregoing restrictions in this Section 8, neither party shall be obligated to preserve the confidentiality of any information that: (i) was previously known; (ii) is a matter of public knowledge; (iii) was or is independently developed without reference to the Disclosing Party’s Confidential Information; (iv) is released for disclosure with the Disclosing Party’s written consent; or (v) is received from a third party to whom it was disclosed without restriction. Disclosure of Confidential Information shall be permitted if it is: (a) required by law; (b) in connection with the tax treatment or tax structure of this Agreement; or (c) in response to a valid order of a U.S. court or other governmental body, provided the owner of the Confidential Information receives written notice and is afforded a reasonable opportunity to obtain a protective order.
  5. This Section 8 shall survive for three (3) years following any termination or expiration of this Agreement; provided that with respect to Confidential Information remaining in the Receiving Party’s possession following any termination or expiration of this Agreement, the obligations under this Section 8 shall survive for as long as such Confidential Information remains in such party’s possession.


  1. INDEMNIFICATION.
  2. Indemnity. Each party shall indemnify, defend, and hold harmless the other party and its affiliates, directors, officers, employees and agents (collectively, the “indemnitee”) against any and all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) arising out of or related to any third-party claim for personal injury or property damage including any damages finally awarded attributable to such claim and any reasonable expense incurred by indemnitee in assisting indemnitor in defending against such claim, that arises out of any action or inaction by the indemnitor or its employees or agents; provided, however, that indemnitee gives indemnitor: (i) written notice within a reasonable time after indemnitee is served with legal process in an action asserting such claims, provided that the failure or delay to notify indemnitor shall not relieve indemnitor from any liability that it may have to indemnitee hereunder so long as the failure or delay shall not have prejudiced the defense of such claim; (ii) reasonable assistance in defending the claim; and (iii) sole authority to defend or settle such claim so long as such defense or settlement does not obligate the indemnitee financially or otherwise. In the event indemnitor elects not to defend any such claim, indemnitee shall have the option but not the duty to reasonably settle or defend the claim at its cost and the indemnitor shall indemnify indemnitee for such settlement or any damages finally awarded against indemnitee attributable to such claim, reasonable costs and expenses (including reasonable attorneys’ fees) and interest on such recoverable funds advanced. This Indemnification will not convert wage and hour claims, and any claim related to the same.
  3. Supplier shall defend, indemnify and hold harmless the Customer against any and all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) for any third party claim against Customer arising out of or related to any claim that any Service constitutes an infringement, misappropriation or unlawful use or disclosure of any intellectual property right of any third party; provided that Supplier shall not be liable for any infringement or alleged infringement that results from: (i) use of a Service in a manner or for a purpose not specifically described in this Agreement; (ii) use of a Service in combination with computer programs, processes, hardware, software, data, systems, or services owned, licensed or provided by someone other than Supplier; (iii) Customer’s products or services not provided by Supplier or a third party acting on its behalf; (iv) modification, change, amendment, customization, or adaptation of any Service not made by Supplier or a third party acting on its behalf; or (v) Customer's failure to implement corrections or changes provided by Supplier if a claim of infringement has been asserted, or in Supplier's opinion is about or likely to be asserted, Supplier may, at its option either: (a) procure for Customer the right to continue using the Service, Software or Deliverable; (b) replace or modify the Service, software, or Deliverable so that it becomes non-infringing; (c) terminate the applicable addendum or SOW and refund all pre-paid fees covering future use of the Service, software or Deliverable.
  4. Customer will indemnify and defend Supplier, its directors, officers, shareholders, employees, agents and their successors, from any and all third party claims and related loss, liability, damage and expense including reasonable attorneys’ fees arising from improper use of Services or information, or any content or data transmitted across any portion of the Supplier network including, but not limited to, libel, slander, invasion of privacy, infringement of copyright arising from any communication using the Services, claims of patent infringement arising from the combining or using of Services or with services or equipment provided by Customer or third parties.


  1. 10.WARRANTIES AND LIMITATIONS OF LIABILITY.
  2. 10.1.Representations and Warranties. Each Party represents and warrants that: (i) it is a legal entity duly organized, validly existing and in good standing in its state of incorporation and principal place of business; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it is duly licensed, authorized or qualified to do business in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder; (iv) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder; and (v) its performance of its obligations under this Agreement will not violate any other agreement between such Party and any third party.
  3. 10.2.NO IMPLIED WARRANTIES. SUPPLIER MAKES NO OTHER WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT, AND SUPPLIER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. SUPPLIER DOES NOT WARRANT THAT THE KOUPONS & DISCOUNTS PLATFORM & SERVICES WILL PERFORM UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS OF THE KOUPONS & DISCOUNTS PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF THE VENDORS, MERCHANTS OR RESELLERS.
  4. 10.3.NEITHER SUPPLIER NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE FOR ANY DAMAGES, LOSSES, CLAIMS, EXPENSES, OR COSTS THAT CUSTOMER OR ITS CUSTOMERS INCURS AS A RESULT OF, OR IN ANY WAY RELATED TO, CUSTOMER’S PROVISION OF PUBLIC INTERNET ACCESS. 11.4. LIMITATION OF LIABILITY SUPPLIER’S LIABILITY TO CUSTOMER ON ACCOUNT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO SUPPLIERDURING THE THREE (3) MONTHS PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE. CUSTOMER IS RESPONSIBLE FOR ALL FINES AND FEES ASSESSED WITHOUT LIMITATION IN CONNECTION WITH VIOLATION OF ANY APPLIED RULES. NEITHER SUPPLIER NOR ITS PARTNERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED HOWEVER THAT NOTHING CONTAINED IN THIS CLAUSE (I) SHALL LIMIT CUSTOMER'S LIABILITY TO PAY ANY CHARGES, FEES AND/OR AMOUNTS DUE HEREUNDER FOR (A) SERVICES ACTUALLY PROVIDED BY SUPPLIER TO CUSTOMER PURSUANT TO THE TERMS HEREOF AND (B) CUSTOMER’S NONCOMPLIANCE WITH THE CARD SCHEMES’ RULES, AND (II) SHALL LIMIT EITHER PARTY’S LIABILITY FOR PERSONAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH DUE TO ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE TOTAL AGGREGATE LIABILITY OF SUPPLIER ITS LICENSORS, DIRECTORS, OFFICERS, AND OR EMPLOYEES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL, IN ALL CIRCUMSTANCES, BE LIMITED TO PROVEN DIRECT DAMAGES.


  1. 11.TERM AND TERMINATION
  2. 11.1.Term. The term of this Agreement (the "Term") will commence on the Effective Date and continue for the period that the parties mutually agreed upon, or one (1) month, if no such period is specified. Thereafter, the Term will renew for successive periods equal (a) to the greater of the specified term or one (1) year, or (b) one (1) month if no such term is specified, unless either notifies the other of non-renewal by written notice sixty Days before the term date.
  3. 11.2.Termination for Cause. Either party may terminate this Agreement for any material breach by the other party by written notice to such other party. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or more if specified in the notice, unless the breaching party first cures the breach.
  4. 11.3.Termination for Convenience. Supplier may terminate this Agreement and Customer’s access to the Services for any reason upon thirty (30) days’ prior written notice.

  5. 11.4.Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the KOUPONS & DISCOUNTS Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following will survive termination or expiration of this Agreement:
  6. 11.4.1.To the extent the customer keeps Supplier’s software otherwise installed and connected to its systems post termination, any outstanding and continued payment obligations , shall survive.


  1. 12.GOVERNING LAW AND ARBITRATION
  2. 12.1.Arbitration, Governing Law, and Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by federal arbitration law, the Federal Arbitration Act, and the laws of the State of Texas without regard to its conflict of laws provisions nor the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement shall be determined and settled by arbitration in Dallas, Texas in accordance with the rules of the American Arbitration Association (“AAA"). With respect to any claim or dispute arising out of or related to this Agreement, each party hereby waives any right it may have to (a) litigate in court, (b) receive a jury trial and (c) to participate in any class or collective action (whether in litigation or arbitration) against the other party. Any award rendered by the arbitrator will be final and binding on the parties and judgement thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. Arbitration will be conducted by one arbitrator that the parties mutually agree upon, or, if the parties are unable to agree to on a single arbitrator, three arbitrators consisting of one arbitrator chosen by each party and a third chosen by the two arbitrators selected by the parties. Each party shall bear its own costs with respect to any arbitration.


  1. 13.MISCELLANEOUS
  2. 13.1.Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
  3. 13.2.Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party's current business contact, if known, and sent to the party's address as specified in this Agreement, or as updated by either party by written notice. Notices shall be effective upon receipt.
  4. 13.3.Force Majeure. No delay, failure, or default of this Agreement will constitute a breach of this Agreement to the extent it is caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control except for a party’s obligations to pay any fees due.
  5. 13.4.Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Supplier’s express written consent. Supplier may freely assign this Agreement. Subject to the forgoing, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
  6. 13.5.Severability. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
  7. 13.6.No Waiver. No Waiver by either party of any provision hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  8. 13.7.Technology Export. Customer will not: a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export any software provided by Supplier or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo.
  9. 13.8.Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes
    all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
  10. 13.9.Modification. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. Supplier may change the terms of this Agreement from time-to-time in its discretion and upon notice to Customer. If Customer does not agree to such changes, it may provide Supplier with 30 day’s notice of termination of this Agreement. Otherwise, continued use of the Supplier Services shall constitute acceptance of any changes to the terms of this Agreement.

13.10.Taxes. Customer is responsible for all sales, use and excise taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority in connection with Customer's performance under this Agreement, other than any taxes imposed on Supplier's income.New Paragraph

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