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HAVLIN SOLUTIONS, LLC

TERMS AND CONDITIONS

 

The following terms and conditions together with each Services Agreement executed by Havlin Solutions, LLC (the “Company”) and the Customer (collectively, this “Agreement”) govern the access and use of each Company Service identified in the Services Agreement. The Company Services identified in the Services Agreement are referred to in these Terms collectively as “Company Services,” and each individually as a “Company Service.”

 

1.           COMPANY SERVICE

 

1.1.              Subject to the terms and conditions of this Agreement, during the Subscription Term (as defined below), Customer may access and use the Company Services for its internal business purposes. Such access and use of each Company Service is expressly limited to the purposes and functions described in the applicable Services Agreement. Company will provide the Company Services in accordance with and subject to the terms and conditions of this Agreement.

 

2.           IMPLEMENTATION

 

2.1.              Upon signature of the Services Agreement, the Company will begin the implementation process, to set up and configure the applicable Company Service to perform the functions specified in the Company Service Description attached to the Services Agreement as Exhibit A. Customer agrees to cooperate with the Company in the implementation process, by providing information, and access to Customer personnel and systems, as needed.

 

2.2.              The Company will inform Customer when the implementation process for a Company Service is complete, and the Company Service is ready for use by Customer (the “Go Live Date”). The Company Services identified in the Services Agreements may have different Go Live Dates. Customer understands that any projected Go Live Date set forth in an Services Agreement is an estimate only, and that achievement of the Go Live Date by such date is dependent on a number of factors.

 

2.3.              The Company will provide Customer’s Authorized Users (as defined below) with the Company’s standard web-based training in the operation of each Company Service on or prior to the Go Live Date for that Company Service.

 

3.           USE OF THE COMPANY SERVICES

 

3.1.              Customer, on behalf of itself and its Authorized Users, agrees not to: (1) use the Company Services other than as authorized in this Agreement; (2) resell, sublicense, or otherwise make the Company Services available to any third party; (3) use the Company Services either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the integrity or performance of the Company Services or any websites or web-based applications; (5) deactivate, impair, or circumvent any security or authentication measures of the Company Services or any websites or web-based applications; (6) access the Company Services for purposes of benchmarking or for purposes of developing a competing service; or (7) authorize any third parties to do the above.

 

3.2.              Customer shall not use Company Services in any unlawful manner, for any unlawful purpose. Without limiting the foregoing, Customer and Authorized Users may not use the Company Services to disseminate, use, or in any way facilitate the use of material non-public information in any way that could violate any applicable laws, including laws restricting the purchase and sale of securities. Customer represents and warrants that Customer and each Authorized User is aware of the restrictions imposed by the United States securities laws, including but not limited to the restrictions on the purchase and sale of securities which prohibits, among other things, trading with knowledge of possession of non-public information that insiders of an issuer have disclosed in breach of their duty of confidentiality.

 

4.           CUSTOMER DATA & SECURITY; OUTPUT

 

4.1.              The Company Services will access and/or upload information, documents, data, forms, or other material provided by or on behalf of Customer, to be analyzed, processed, used or handled by the Company Services (“Customer Data”). Company assumes no responsibility for the content of Customer Data. Customer grants Company the right to access and use the Customer Data during the term of this Agreement as necessary to provide the Company Services to Customer and to identify or resolve technical problems with the Company Services. Customer represents and warrants that (1) it has, and will continue to have, during the term of this Agreement, the legal right and authority to access, use and disclose to Company all Customer Data; and (2) Company’s use of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third party.

 

4.2.              Company will maintain (and will require its third-party service providers to maintain) reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of the Customer Data, in accordance with applicable industry standards.

 

4.3.              Customer acknowledges that it is Customer’s responsibility to back up and store all Customer Data. Company will follow its standard archival procedures for Customer Data. In the event of Company’s loss or corruption of Customer Data, Company shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Company in accordance with its standard archival procedure. Company shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. COMPANY’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 5.3 SHALL CONSTITUTE COMPANY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.

 

4.4.              Company Services will provide for automation of certain workflow, as described in the Company Service Descriptions. To the extent the Company Services provide output in the form of records, data, calculations, documents, or information (“Output”), Customer may access, view, and/or use the Output only for Customer’s internal business purposes.

 

5.           CONFIDENTIALITY

 

5.1                   In connection with the performance of this Agreement, each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as being confidential, or that is of a nature such that the receiving party should otherwise reasonably understand it to be confidential (“Confidential Information”). Customer Data is the Confidential Information of Customer. Company Confidential Information includes, without limitation, the Company Services, the Output, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Company Services. The receiving party agrees to take reasonable precautions to protect such Confidential Information, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement and to not disclose (without the disclosing party’s prior authorization) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement). Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, or (2) was in its possession or was known prior to receipt from the disclosing party, or (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed).

 

6.           SUBSCRIPTION TERM AND RENEWAL; TERMINATION

 

6.1.              Unless otherwise set forth in an applicable Services Agreement, the Initial Subscription Term for each Company Service (as set forth in the applicable Services Agreement) will automatically renew for successive additional periods of two (2) years each (each, a “Renewal Term”), unless either party notifies the other party of its intent not to renew at least ninety (90) days prior to the end of the then-current Subscription Term for that Company Service. The Initial Subscription Term and each Renewal Term are each individually referred to herein as a “Subscription Term.” The Subscription Term for each Company Service may be different.

 

6.2.              Without limiting other available remedies, Company reserves the right to suspend or disable Customer’s and its Authorized Users’ access to any or all Company Services if Customer has unpaid Fees relating to any Company Service more than 10 days past due. Company also reserves the right to suspend or disable access to any or all Company Services if Company determines (in its discretion) that: (a) Customer’s or any of its Authorized Users’ use of a Company Service disrupts, harms, or poses a security risk to Company or to any other customer, or may cause harm to Company’s systems, a Company Service or any third party service provider; or (b) Customer or any of its Authorized Users has used, or is using, a Company Service in breach of this Agreement (including any use of a Company Service for fraudulent or illegal activities).

 

6.3.              A party may terminate this Agreement, as to any or all Company Services, with written notice if the other party breaches a material term of this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. The terminating party may terminate this Agreement as to all, or just some, of the Company Services. Unless otherwise specified by the terminating party, termination of this Agreement will terminate all Company Services. If Customer terminates this Agreement by reason of breach by the Company, the Company will refund any unused portion of the Subscription Fees that Customer had paid for the terminated Company Services for the remainder of the then-current Subscription Term applicable to that Company Service. For these purposes, the unused portion means the Subscription Fees attributable to each month after the month during which Customer terminated. If the Company terminates this Agreement by reason of breach by Customer, (a) Customer will be required to immediately pay the Company, and the Company may charge Customer’s credit card or initiate an ACH transfer to the Company for, all unpaid Fees for the remainder of the then-current Subscription Term of the terminated Company Service(s), for which Customer would have been responsible had the Agreement not been terminated, and (b) Customer will not be entitled to a refund of any amounts paid. For clarity, for these purposes the then-current Subscription Term includes any Renewal Term that would have gone into effect less than 90 days after the date of termination of this Agreement (unless a party had given notice of non-renewal at least ninety (90) days prior to the start of such renewal).

 

6.4.              Customer may also terminate this Agreement at any time, without cause, as to any or all Company Services, upon notice to the Company. If Customer terminates this Agreement without cause, (a) Customer will be required to immediately pay the Company, and the Company may charge Customer’s credit card or initiate an ACH transfer to the Company for, all unpaid Fees for the remainder of the then-current Subscription Term of the terminated Company Service(s), for which Customer would have been responsible had the Agreement not been terminated, and (b) Customer will not be entitled to a refund of any amounts paid. For clarity, for these purposes the then-current Subscription Term includes any Renewal Term that would have gone into effect less than 90 days after the date of termination of this Agreement (unless a party had given notice of non-renewal at least ninety (90) days prior to the start of such renewal).

 

6.5.              Upon any expiration or termination of this Agreement, Customer’s right to access and use the Company Service(s) terminated will automatically terminate, and Customer may not continue to access or use such Company Service(s). Company will have no liability for any costs, losses, damages, or liabilities arising out of or related to Company’s exercise of its termination rights under this Agreement. Except as otherwise provided in Section 7.3, any payment obligations accrued as of the expiration or termination (or that relate to activity during the Subscription Term) will remain in effect. In addition, the obligations and provisions of Sections 4.1, 4.2, 5.1, 5.4, 6, this Section 7.5, 9, 11, 12, and 13, and any other obligations of a continuing nature, will survive any expiration or termination of this Agreement.

 

7.           SUBSCRIPTION FEES

 

7.1.              Customer will pay the fees or charges as specified in each Services Agreement (collectively, “Fees”), consisting of the fee for use of the Company Service (“Subscription Fee”), and the fee for configuration and implementation of the Company Service for Customer (the “Implementation Fee”). All Fees are quoted and shall be paid in United States dollars. The Company is authorized to charge Customer’s credit card, or initiate an ACH transfer to the Company, for all Fees that become payable to the Company pursuant to this Agreement. Unless otherwise set forth in the applicable Services Agreement, (a) the Company will charge Customer’s credit card, or initiate an ACH transfer to the Company, for the Implementation Fee upon signature of the Services Agreement and (b) the Company will charge Customer’s credit card, or initiate an ACH transfer to the Company, for the Subscription Fees for the Initial Subscription Term, and each Renewal, in advance, on a monthly or yearly basis, as set forth in the Services Agreement. Except as otherwise provided in Section 7.3, all payment obligations are non-cancelable and once paid are nonrefundable. All amounts payable by Customer under this Agreement will be made without the right of setoff or counterclaim, and without deduction or withholding. If Customer is required by applicable law to make withholdings from amounts payable to the Company, the amount payable to the Company will be grossed up so that, after such withholdings, the Company receives the full amount set forth in the Services Agreement.

 

7.2.              The Subscription Fee for the Initial Subscription Term will be as provided in the Services Agreement. After the Initial Subscription Term, unless the Company notifies Customer otherwise, the Subscription Fee for each subsequent year will be five percent (5%) higher than the Subscription Fee for the prior year (“Automatic Increase”). For these purposes, if the Initial Subscription Term is not one year, the Subscription Fee for the Initial Subscription Term will be annualized, so that the Subscription Fee for the next year will be 5% higher than twelve times the Subscription Fee for the Initial Subscription Term divided by the number of months in the Initial Subscription Term. The Automatic Increase will apply regardless of whether the Subscription Fee for a Company Service is paid monthly or yearly. Notwithstanding the above, after the Initial Subscription Term, the Company will be entitled to change its Subscription Fees at any time or times, including increases in excess of the Automatic Increase, or to introduce new mandatory fees for additional functionality or services; provided, however, that (a) no such change or new fee will become effective until the beginning of the next Renewal Term that begins more than thirty (30) days after the date of the Company’s notice, and (b) Customer may terminate this Agreement, effective as of the beginning of the next Renewal Term, by notifying the Company of such termination at any time during the thirty (30)-day period after the date of the Company’s notice. For clarity, an Automatic Increase shall apply to each year after the Initial Subscription Term unless the Company notifies Customer otherwise.

 

7.3.              If the Company is not able to charge Customer’s credit card, or effect an ACH transfer to the Company, and Customer does not pay a Fee by other means by the date the Fee is to be paid, the overdue Fee will be subject to a finance charge of 1.5% per month or the maximum rate permitted by law, whichever is less, calculated from the date such amount was due until the date that payment is received by Company. All billing disputes must be made in writing within 60 days of the date the applicable Company Service was rendered to be eligible to receive an adjustment or credit. Subscription Fees are exclusive of all taxes, levies, duties or other charges imposed by taxing authorities, and Customer is responsible for payment of all such amounts, excluding only taxes based solely on Company’s income. If Company has the legal obligation to pay or collect taxes for which Customer is responsible, the Company is authorized to charge the appropriate amount to Customer’s credit card, or to effect an ACH transfer to the Company in the appropriate amount, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

8.           OWNERSHIP RIGHTS

 

8.1.              Company and its licensors own all worldwide right, title and interest in and to all Company Services (as they may be implemented, configured or modified for use by Customer) and the Output (except to the extent the Output consists of Customer Data), including all worldwide intellectual property rights therein (collectively, the “Company IP”). Customer owns all Customer Data. This Agreement does not convey any proprietary interest in or to any Company IP or any Customer Data or rights of entitlement to the use thereof except as expressly set forth herein. Customer grants Company the right to use its name (and the corresponding trademark or logo) on Company’s website and marketing materials to identify Customer as a customer; provided, however, that any such use must be pre-approved by Customer, which will not be unreasonably withheld or delayed.

 

8.2.              If Customer provides any ideas, suggestions, or recommendations regarding a Company Service (“Feedback”), Company will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, Customer grants Company a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner such Feedback.

 

8.3.              Company may collect anonymous usage data with respect to the use and performance of the Company Services (“Usage Data”). Company uses Usage Data for internal business purposes, such as improving, testing and providing the Company Services and developing additional services. Company may disclose Usage Data in aggregate form (e.g., data aggregated from all customers’ use of the Company Services, but does not identify Customer or any Authorized User) for promotion, statistical analysis, market analysis, financial analysis, and other such purposes.

 

9.           SUPPORT; MAINTENANCE SERVICES; WARRANTY

 

9.1.              Company will provide Customer with a reasonable level of technical support services relating to the use and operation of the Company Services, by telephone during the Company’s normal business hours, or by email. Customer may report errors in the operation of a Company Service by telephone during the Company’s normal business hours, or by email. The Company will use commercially reasonable efforts to correct errors in the operation of the Company Service as promptly as practicable.

 

9.2.              Company will provide Customer with any updates to the Company Services that the Company may release from time to time to its customers generally, to correct errors or to improve or enhance the Company Service. There will be no additional Fees for the use of any such updates; provided, however, that the Company may require payment of additional Subscription Fees for optional upgrades that include material additional functionality that the Company does not release to its customers generally without additional consideration.

 

9.3.              Company warrants that it will use commercially reasonable efforts to cause the Company Services to be operable at such intervals and times as may be provided for in the Services Agreement, other than during periods of scheduled maintenance. Company agrees to use commercially reasonable efforts to schedule maintenance only during nighttime hours. In the event of unscheduled downtime, the Company will use all commercially reasonable efforts to restore operation or availability as soon as practicable. Customer acknowledges, however, that the operability of the Company Services, may depend on the equipment or services of third parties and that the Company is not responsible for downtime due to causes not within the Company’s reasonable control.

 

9.4.              Customer’s sole and exclusive remedy for any breach of the covenants and warranties set forth in Sections 10.1 through 10.3 above will be to terminate this Agreement pursuant to Section 7.3 after the applicable cure period, and the settling of accounts pursuant to Section 7.3.

 

9.5.              The Company will have no responsibility to verify Customer Data, including its source or accuracy. The Company assumes no responsibility for the Customer Data of any nature, including its validity, timeliness, or accuracy and the Company will have no liability for Output based thereon. Customer acknowledges that the Company Services are tools designed to automate workflow, but the Company does not represent or warrant that any particular results will be achieved through use of the Company Services. The Company does not verify actions taken based upon the Output and will have no responsibility for any actions taken, or not taken, by Customer personnel or third parties.

 

9.6.              Customer assumes sole responsibility and liability for results obtained from the use of the Company Services. Company shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Company by Customer or Authorized Users in connection with the Company Services or any actions taken by Company at Customer’s direction. Company shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the Company Services. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.3, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE COMPANY SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.3, COMPANY DISCLAIMS ANY WARRANTY THAT THE COMPANY SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE COMPANY SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

 

10.        LIMITATION OF LIABILITY

 

10.1.           IN NO EVENT WILL COMPANY AND ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE COMPANY SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE A COMPANY SERVICE, OR FOR ANY INFORMATION OR DATA TRANSMITTED OR OBTAINED FROM OR THROUGH A COMPANY SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY AND ITS LICENSORS RELATING TO ANY COMPANY SERVICE EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER FOR SUCH COMPANY SERVICE FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (WHEN COMBINED WITH ALL PRIOR LIABILITY).

 

11.        INDEMNIFICATION

 

11.1.           Company will: (1) defend Customer against any third-party suit, claim, action or demand (a “Claim”) alleging that a Company Service infringes any copyright or trademark or misappropriates a trade secret of a third party; and (2) indemnify and hold Customer harmless from any final award of damages or settlement amount arising in connection with any such Claim. In the event that Company’s right to provide a Company Service is enjoined or in Company’s reasonable opinion is likely to be enjoined, Company may obtain the right to continue providing the Company Service, replace or modify the Company Service so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement and refund to Customer the unused portion of the Subscription Fee for periods after such termination, but without further liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY A COMPANY SERVICE. Company shall have no liability under this Section 12.1 to the extent that any third-party claims described herein are based on use of a Company Service in a manner that violates this Agreement or the instructions given to Customer by Company, or use of a Company Service in combination with hardware, software, processes or other items not provided by Company where the Company Service alone would not infringe.

 

11.2.           Customer will: (1) defend Company, its officers, directors and employees against any Claim arising out of or related to (a) any injury, damage or loss resulting from Customer’s or an Authorized User’s use of a Company Service (other than any claim for which Company is responsible under Section 12.1), (b) use of a Company Service by Customer or an Authorized User in a manner that violates this Agreement, or (c) Company’s use of the Customer Data in accordance with this Agreement; and (2) indemnify and hold Company harmless from any final award of damages or settlement amount arising in connection with any such Claim.

 

11.3.           The foregoing indemnity obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.

 

12.        GEN​ERAL

 

12.1.           The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

 

12.2.           This Agreement is governed by and construed in accordance with the laws of the State of South Carolina, as if performed wholly within the state and without giving effect to the principles of conflict of law. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Greenville County, South Carolina and the parties hereby consent to personal jurisdiction and venue therein. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

 

12.3.           Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, either party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party, may assign this Agreement in its entirety to such party’s successor without the other party’s consent. Any attempt to assign this Agreement other than as permitted above will be null and void.

 

12.4.           Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

 

12.5.           All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, by certified mail, or by email. All notices will be deemed given upon receipt. All notices to Customer will be sent to the address or email address specified in Customer’s account registration, or to such other address or email addresses as Customer may specify in accordance with this Section. All notices to Company will be sent to the address or email address set forth in this Agreement, or to such other address or email addresses as Customer may specify in accordance with this Section.

 

12.6.           This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to this subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.