Terms and conditions
- “Affiliate” means an individual, trust, business trust, joint venture, partnership, corporation, association or other legal entity which (directly or indirectly) is Controlled by, Controls or is under common Control with a Party;
- “Agreement” means this Agreement and its Schedule and any other document incorporated by reference and attached to this Agreement;
- “Applicable Laws” means the laws of the state of New York and any other laws or regulations, regulatory policies, statutes, guidelines or industry codes which apply to the provision of the Triptease Services from time to time;
- “Confidential Information” means any information, that relates to the business, affairs, operations, customers (including customer data), processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, methods, technology, technical data, personnel and suppliers of the disclosing party, and any other information clearly designated by a Party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential or other matters connected with the Triptease Services;
- “Control” means in respect of a company, the power of a person directly or indirectly to secure that the affairs of the company are conducted in accordance with the wishes or directions of that other person including (i) by means of the holding of shares or the possession of voting power in or in relation to that company or any other body corporate; or (ii) by virtue of any powers conferred by the articles of association or other document regulating that company or any other body corporate, and Controlling shall be construed accordingly;
- “Effective Date” means the date of this Agreement as found in the Schedule;
- “End User” means an individual end user of a Website;
- “Integration” means the incorporation and configuration of Integration Code within a Website in accordance with Triptease’s specifications;
- “Integration Code” means the software code provided by Triptease to Customer for purposes of causing Triptease’s Services to appear on a Website and for the purposes of enabling Triptease to capture Interaction Data;
- “Intellectual Property” means (i) patents; (ii) copyrights, moral rights, works of authorship (including copyrights in computer software), and rights in data and databases; (iii) trademarks, service marks, Internet domain names, trade dress, and trade names, together with all goodwill associated therewith; (iv) registrations, applications, renewals and extensions for any of the foregoing in (i)-(iii); and (v) trade secrets;
- “Interaction Data” means data regarding an End User’s usage of and interaction with the Websites and Triptease’s Service;
- “Triptease Service” means the hosted services operated by Triptease, as further described in the Schedule and Definitions;
- “Widget” means Triptease’s proprietary web-based tools, as further described in the Definitions;
- “Triptease Materials” means the Widgets, the Services, the Integration Code, and any documentation or other materials that Triptease provides to Customer;
- “Websites” means the websites owned or operated by Customer that are listed in the Schedule;
- “Price Check Services“ means the hosted service operated by Triptease by which the Price Check Widget can be caused to be displayed on Websites;
- “Price Check Widget“ means Triptease’s proprietary web-based tool which provides certain hotel room price comparison information on the Website;
- “Direct Booking Platform“ means the hosted service operated by Triptease which allows Customer to manage, monitor and display the Enchantment Services and Price Check Services and monitor the Disparity Analytics;
- “Enchantment Services“ means the hosted service operated by Triptease by which the Enchantment Widget can be caused to be displayed on Websites;
- “Enchantment Widget“ means Triptease’s proprietary web-based tool which permits hotel website operators to track abandonment and provide incentives and other offers to Website visitors whose behavior on a website indicate that such users may be likely to close the Website page;
- “Disparity Analytics“ means the proprietary web-based dashboard which allows Customer to monitor disparity data;
- “Initial Term“ means the period (if any) prior to the Term as defined in the Schedule;
- “Renewal Term“ means the annual period subsequent to and immediately following the Term;
- “Net Revenue“ means revenue generated, directly or indirectly, by the sale of a room night by a Customer (or its affiliates) at a hotel owned or operated by Customer (or its affiliates) to an End User as a result of Customer (or its affiliates) use of Enchantment Services, including any cancellation fees, less (i) any credits or refunds made to such End User and (ii) applicable sales, use, room, excise, occupancy, or similar taxes or charges, which are collected from such End User in connection with such sale and separately stated;
- “Schedule“ means the signed document confirming this Agreement and accepting all of its Terms & Conditions as laid out herein.
Service provision. Integrations
- Service“. Subject to the terms and conditions of this Agreement, Triptease shall make available the Services to Customer during the Term (defined below). Upon any termination of this Agreement, Customer shall disable the Integration, and Triptease shall cease making available the Services to Customer. Customer acknowledges that Triptease may modify the Services from time to time if it deems necessary or useful to: (i) maintain or enhance the (a) quality or delivery of the Services, or (b) the Services’ cost efficiency or performance; or (ii) to comply with applicable law or in response to any allegation of Intellectual Property infringement. Triptease shall use commercially reasonable efforts to ensure that any change will not materially diminish the features or functionality of the Services.
- “Integration“. Triptease hereby grants to Customer during the Term a limited, non-exclusive, non-transferable license to use the applicable Integration Code on systems owned or controlled by Customer solely for purposes of enabling the applicable Integration and in accordance with all applicable documentation and other instructions and requirements provided by Triptease.
- “Restrictions“. Except to the extent expressly stated otherwise in this Agreement, Customer shall not nor attempt to, nor permit, procure, enable or request any other person or entity to (i) alter, adapt, reproduce, modify, create derivative works based on, reverse engineer, decompile, reverse compile, reverse assemble, translate or disassemble all or any portion of the Triptease Materials; (ii) use the Triptease Materials to (a) create, market or distribute any product or service that is competitive with the Services, or (b) act as a service bureau on behalf of, or otherwise provide processing or services support to, any person or entity; (iii) transfer, sell, lease, license, sublicense, distribute, disclose, divulge or make available the Triptease Materials to, or permit use of or access to the Triptease Materials by, any person or entity; or (d) remove, alter or obscure any Intellectual Property notice or other restrictive notice or legend contained or included in or on any Triptease Materials.
- “Suspension“. Triptease may suspend the Services (in whole or in part) from time to time for purposes of conducting maintenance, updates or repairs. In addition, Triptease may suspend, limit or terminate Customer’s access to or use of the Services (in whole or in part) at any time without liability thereof if: (i) Triptease determines such action is necessary to prevent harm to any system or network or to limit Triptease’s liability, (ii) Customer attempts to access or use the Service in a manner that breaches this Agreement, or (iii) Customer does not pay the due Fees within the deadline set out in Clause 3.2
- “Fees“. Customer shall pay Triptease the fees as set out in the Schedule (the “Fees”).
- “Payment Terms“. Customer shall pay to Triptease the Fees for the Initial Term, Term and Renewal Term due to Triptease pursuant to the Schedule within 14 days after Customer’s receipt of an invoice from Triptease for those Fees. Any amounts due to Triptease under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by Applicable Law, whichever is less. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes imposed on Triptease’s income.
- Fees for the Triptease Services are due annually in advance unless explicitly stated otherwise in the Schedule.
- Triptease may increase the Fees for any subsequent Renewal Term by providing written notice to Customer prior to the commencement of the Renewal Term and the Schedule will be deemed amended without further action by the Parties to reflect the increased Fees. Notice of any price increase will be given at least 90 days before the commencement of the subsequent Renewal Term.
- Invoices for Initial Terms, and Terms are issued upon delivery of Integration Code for new Customers. And upon the first day of the Term or Renewal Term for all subsequent Agreement periods.
- “US Sales and Use Taxes“ (“Transaction Taxes”). Customer shall pay or reimburse Triptease for Transaction Taxes that Triptease is required to collect on transactions with Customer under this Agreement, it being understood that this obligation is without prejudice to any statutory obligation that either Party may owe to a taxing authority. In the event that Triptease is subject to audit by any taxing authority and Triptease shall not have collected Transaction Taxes from Customer, Customer shall provide Triptease with documentary evidence that Customer has paid the Transaction Taxes to the relevant taxing authority. Triptease is hereby authorized to share such documentary evidence with relevant taxing authorities.
Triptease reserves all rights in and to the Triptease Materials not expressly granted to Customer pursuant to this Agreement. Customer acknowledges that as between the Parties, Triptease is and will be the sole and exclusive owner of all right, title and interest in the Triptease Materials, including all Intellectual Property rights therein and thereto. Customer hereby irrevocably assigns any rights it might obtain in the Triptease Materials (including any enhancements or improvements thereto or derivative works thereof) to Triptease. At Triptease’s request and expense, Customer shall perform any and all further actions and execute any additional documents that Triptease may deem necessary or desirable to evidence, protect or confirm Triptease’s or its designee’s ownership interest in, to and under the Triptease Materials, including making further written assignments in a form determined by Triptease. Customer shall (i) safeguard all Licensed Materials from infringement, misappropriation, theft, misuse or unauthorized access and (ii) promptly notify Triptease if Customer becomes aware of any of the foregoing. Customer is not required to provide any ideas, feedback or suggestions regarding any of Triptease’s products or services (“Feedback”) to Triptease. To the extent Customer does provide any Feedback to Triptease, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Triptease and acknowledges that Triptease may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.
- “Term“. The Agreement is effective as of the Effective Date and continues in effect for the duration of the Term (as defined in the Schedule), unless earlier terminated pursuant to the provisions of this Agreement. On expiry of the Term, this Agreement shall automatically renew for the next annual Renewal Term unless this Agreement is terminated pursuant to Clause 5.2 (a).
- “Termination“. Either Party may terminate this Agreement:
- up to 60 days before the end of the Term or subsequent Renewal Terms by providing a written and verbal notice following a Termination Call. All Fees for the entire period of the Term or Renewal Term will be due regardless of the date of termination;
- effective immediately if the other Party is in material breach of this Agreement and fails to cure such material breach (if capable of cure) within 30 days (or 10 days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching Party; or
- immediately upon written notice at any time if: (i) the other Party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not removed or resolved within 60 calendar days; (iii) the other Party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other Party discontinues its business; (v) a receiver is appointed over all or substantially all of the other Party’s assets or business; or (vi) the other Party is dissolved or liquidated.
- “Effect of Termination“. Upon any termination of this Agreement, all rights and licenses granted to Customer under this Agreement terminate, and Customer shall (i) promptly cease exercising those rights and licences, (ii) destroy or return to Triptease all copies of the Integration Code and delete all copies of the Integration Code (including from the Websites) and any documentation, and (iii) promptly pay to Triptease any amounts due under this Agreement. Customer acknowledges that termination of this Agreement (other than by Customer for a breach by Triptease) creates no obligation for Triptease to refund any amounts paid or payable by Triptease under this Agreement. Clauses 1, 2.3, 3, 4, 5.3, 6, 7, 8 and 9 survive termination of this Agreement.
- “Initial Term“. If the Customer has agreed an Initial Term prior to the Term then this Agreement can be cancelled during the Initial Term by giving written notice up to fourteen days prior to the end of the Initial Term. All Fees will be due for the entire period of the Initial Term regardless of the date of termination.
- “Renewal Term“. This Agreement will automatically renew for additional one-year terms (each, a Renewal Term) unless earlier terminated in accordance with Clause 5.2 (a)
Representation and warranties. Disclaimer. Indemnification.
- “Mutual Warranties“. Each Party represents, warrants and covenants to the other Party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
- “Disclaimer“. THE TRIPTEASE MATERIALS 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, TRIPTEASE, 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 TRIPTEASE MATERIALS, 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 LIMITING THE FOREGOING, TRIPTEASE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE TRIPTEASE MATERIALS WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, BE UNINTERRUPTED, ERROR FREE OR SECURE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR MEET ANY PERFORMANCE OR RELIABILITY STANDARDS.
- “By Customer“. Subject to Section 6.3(b) Customer shall indemnify and defend Triptease and its affiliates, and its and their directors, officers, employees, and agents from and against any and all damages, expenses (including attorneys’ fees and court costs), losses, liabilities, obligations, claims, demands, suits, actions, investigations, proceedings, and causes of action (collectively, “Losses”) arising out of or relating to any third-party claim to the extent the claim arises out of or relates to (i) a claim that the content or functionality of the Websites (other than the Price Check and Enchantment Widgets) infringe that third party’s Intellectual Property rights, (ii) Customer’s or any End User’s access to or use of the Triptease Materials (other than claims that the use of a Widget infringes the Intellectual Property rights of that third party), (iii) Customer’s breach of this Agreement or any agreement between Customer and an End User, and (iv) any IP Claim to the extent it is a Customer IP Claim. Triptease reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by Customer, in which event Customer shall cooperate with Triptease in asserting any available defenses.
- “By Triptease“. Subject to Section 6.3(c), Triptease shall indemnify and defend Customer from and against any and all Losses arising out of or relating to any third-party claim that any of the Triptease Materials as provided by Triptease to Customer infringe the Intellectual Property rights of that third party (each, an “IP Claim”). Customer acknowledges that this Section 6.3(b) states Triptease’s entire responsibility and liability and Customer’s sole and exclusive remedy for any actual or alleged infringement of third-party Intellectual Property rights in connection with this Agreement.
- “Exclusions“. Triptease has no obligation to indemnify or defend Customer for any IP Claim to the extent it arises out of or relates to (i) Customer’s use of the Triptease Materials in combination with materials, software, Intellectual Property or services not furnished or approved by Triptease, where there would be no basis for the IP Claim but for the combination, (ii) any breach of this Agreement by Customer, (iii) Customer’s improvement, modification or enhancement of, or creation of any derivative work based on, any Triptease Materials, or (iv) Customer’s failure to implement a work-around, release, update or other modification to or for the Licensed Materials as provided or directed by Triptease (the IP Claims described in (i)-(iv) are “Customer IP Claims”).
- “Mitigation“. In the defense, settlement or avoidance of any IP Claim, and in addition to but not in lieu of any other obligation set forth in Section 6.3, Triptease may, at its option and (subject to Customer’s obligations under Section 6.3(a)) its expense, (i) replace or modify any allegedly infringing Triptease Materials with non-infringing services, software or documentation that are reasonably comparable to the Triptease Materials being replaced, and/or (ii) obtain a license for Customer to continue using any of the allegedly infringing Triptease Materials. If Triptease determines in its good-faith business judgment that the remedies set forth in clauses (i) and (ii) in the foregoing sentence are not available on commercially reasonable terms, Customer shall stop using and return to Triptease all allegedly infringing Triptease Materials, and Triptease may terminate this agreement (and refund any pre- paid Fees for Services not yet provided).
- “Indemnification Procedure“. Each Party (the “Indemnified Party”) shall give the other Party (the “Indemnitor”) prompt notice of any demand by the Indemnified Party for indemnification under this Section 6.3 (a “Claim”), as well as copies of any papers served on the Indemnified Party relating to that Claim, but the Indemnified Party’s failure to provide or delay in providing that notice or those copies will not release the Indemnitor from its obligations under this Section 6.3, except to the extent the failure or delay materially prejudices the Indemnitor. The Indemnitor has the exclusive right to conduct the defense of any Claim and any negotiations for its settlement, except that (i) the Indemnitor may not bind the Indemnified Party to any agreement, or otherwise prejudice or impair the Indemnified Party’s rights, without the Indemnified Party’s prior written consent, which the Indemnified Party may not unreasonably withhold or delay, and (ii) the Indemnified Party (x) shall assist the Indemnitor in its defense of any Claim, at the Indemnitor’s request and expense, (y) may participate at its expense in the Indemnitor’s defense of or settlement negotiations for any Claim with counsel of the Indemnified Party’s own selection, and (z) may, at its option and the Indemnitor’s expense, and on notice to the Indemnitor, conduct the defense of and any settlement negotiations for any Claim in place of the Indemnitor if the Indemnitor fails to promptly defend the Claim as required in this Section 6.3. At the Indemnified Party’s request and the Indemnitor’s expense, and in addition to the Indemnitor’s other obligations under this Agreement, the Indemnitor shall assist the Indemnified Party with the defense of any Claim for which the Indemnified Party conducts the defense under this Section 6.3(e).
- Each Party and its affiliates shall maintain in confidence any confidential information it obtains from the other Party or that other Party’s affiliates in connection with this Agreement and may not use or disclose that information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. The restrictions in the foregoing sentence do not apply to information that (i) the receiving Party or its Affiliates (“Recipient”) rightfully possessed without a duty of confidentiality before obtaining it from the disclosing Party (“Discloser”); (ii) is or becomes generally available to and known by the public, other than due to Recipient’s breach of this Agreement; (iii) Recipient received on an unrestricted basis from a source unrelated to either Party and not under a duty of confidentiality with respect to the information; or (iv) Recipient developed independently of the disclosed information. Customer acknowledges that Triptease’s Confidential Information includes the Triptease Materials and information concerning the Triptease Materials.
- Recipient shall to the extent permitted by law, (i) notify Discloser within three calendar days if a law requires, or a governmental authority requires or requests, that Recipient disclose Discloser’s Confidential Information and (ii) use reasonable efforts to allow Discloser an opportunity to seek injunctive relief from, or a protective order with respect to, the contemplated disclosure. If notification to the Discloser is not permitted by law, or if it is permitted and that relief or order is not obtained, Recipient (a) may disclose only that portion of Discloser’s Confidential Information that Recipient’s counsel advises is not subject to privilege and must be disclosed and (b) shall cooperate with Discloser to the extent permitted by law to ensure the disclosed Confidential Information is treated in a confidential manner after disclosure.
- Notwithstanding anything to the contrary in this Agreement, Customer agrees that Triptease may use and disclose Interaction Data and other data collected in connection with the operation of the Services as follows: (i) Triptease may use such data for purposes of providing Customer with the Services and for Triptease’s internal business purposes on a confidential basis; (ii) Triptease may disclose such data to its third-party service providers on a confidential basis that assist it in providing the Services as is reasonably necessary for such assistance; (iii) Triptease may disclose such data as may be required by law or legal process; and (iv) Triptease may anonymize and/or de-identify any such data and aggregate that information and data with other information and data for any further use or purpose (including for distribution to the public).
Limitation of Liability
EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF SECTION 7, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST DATA, OR LOST EQUIPMENT, ANY WEBSITE OR NETWORK DOWNTIME, OR COST OF PROCURING SUBSTITUTE SERVICES. TO THE EXTENT PERMITTED BY LAW, EXCEPT (i) WITH RESPECT TO A BREACH OF SECTION 7 AND (ii) THE PARTIES’ OBLIGATIONS IN SECTION 6.3 TRIPTEASE’S TOTAL CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE GREATER OF THE FEE FOR INITIAL TERM AS SET OUT IN TRIPTEASE, INC. ORDER FORM AND THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TRIPTEASE HEREUNDER OVER THE 12 MONTHS PRECEDING THE DATE OF THE CLAIM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WITH RESPECT TO BREACHES OF SECTION 7 AND THE PARTIES’ OBLIGATIONS IN SECTION 6.3, THE PARTIES’ TOTAL CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL VALUE OF A 12 MONTH CONTRACT. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.
- “Publicity“. At any time after the beginning of the Initial Term, Term, or Renewal Term, Triptease may (i) issue press releases or other public announcements regarding the Services and the relationship between the Parties contemplated by this Agreement; and (ii) identify Customer as a Triptease client.
- “Relationship of the Parties“. The Parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the Parties, or an employee-employer relationship. No Party shall have any right to obligate or bind any other Party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
- “Assignment“. Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign its rights and obligations under this Agreement without the consent of the other Party to an affiliate or in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction (an “Acquisition”). Notwithstanding the foregoing, in the event of an Acquisition of Customer, the Services may not be used in connection with any websites of the acquiring party without the prior written consent of Triptease. This Agreement inures to the benefit of and shall be binding on the Parties’ permitted assignees, transferees and successors. Any assignment in contravention of this Section is void.
- “Force Majeure“. Except for payment obligations, neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
- “Notices“. All notices, requests, claims and other communications between the Parties described in or otherwise regarding this Agreement shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to the addresses noted in the preamble of this Agreement or at any other address of which that Party has notified the other Party in accordance with this Section. Notices shall be sent to the attention of “Legal Department” or as otherwise directed by a Party in accordance with this Section. All notices will be effective upon receipt.
- “Amendments“. An amendment of this Agreement shall be binding upon the Parties so long as it is in writing and executed by both Parties. No regular practice or method of dealing between the Parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
- “Construction“. The Parties acknowledge that the provisions of this Agreement are the language the Parties chose to express their mutual intent and hereby waive any remedy and the applicability of any law that would require interpretation of any claimed ambiguity, omission or conflict in this Agreement against the Party that drafted it. Each Party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and are not intended to affect the Agreement’s meaning or interpretation. The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.” “Commercially reasonable efforts” means, with respect to a given obligation, the efforts that a reasonable and prudent person or entity desirous of achieving a result would use in similar circumstances to perform that obligation as promptly as possible consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable immaterial expenditures or liabilities. Unless stated otherwise, all references to a date or time of day in this Agreement are references to that date or time of day in New York, New York.
- “Severability; Waiver; Counterparts“. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, all other provisions of this Agreement are to remain in effect as written, except that this entire Agreement will be unenforceable if modifying or disregarding the unenforceable provision affects the economic and legal substance of the transactions contemplated by this Agreement in a manner materially adverse to either Party. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be signed in counterparts, and each of them is an original, and all of them constitute one agreement.
- “Governing Law; Jurisdiction“. This Agreement shall be governed by, and construed in accordance with, the laws of the state of New York, without reference to conflicts of laws principles. The Parties agree that the state and federal courts in the Southern District of New York will have exclusive jurisdiction and venue under this Agreement, and the Parties hereby agree to submit to such jurisdiction exclusively. The Parties disclaim any applicability of the United Nations Convention on Contracts for the International Sale of Goods.
- “Entire Agreement“. This Agreement constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. If a provision in an Exhibit conflicts with any other provision in this Agreement, the latter governs to the extent of the conflict. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. Except to the extent stated otherwise in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity.