Terms of Service
THESE TERMS OF SERVICE (“Agreement”) is a legal agreement between Anzenna, Inc., a Delaware corporation (“Provider,” “we,” “us,” or “our”) and the customer who has registered to use our Service (“Customer,” “you,” or “your”) (each, a “Party,” and together, the “Parties”) for the use of Provider platform and service offering as defined below (“Service”). It also applies to and binds any Authorized User (as defined below) of Customer (any reference herein to you or your will include Authorized Users). BY ACCESSING OR USING OUR SERVICE, YOU ARE ACCEPTING THIS AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE THE SERVICE AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES. IF YOU ARE ACCESSING AND USING THE SERVICE ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY AS WELL AS YOU INDIVIDUALLY AS AN AUTHORIZED USER ON BEHALF OF THAT COMPANY OR LEGAL ENTITY. ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH PROVIDER.
ACCESS AND SERVICE Description of the Service. The “Service” means the Provider SaaS-based workforce protection platform that embeds security into everyday employee workflows. The Service integrates into Customer’s existing systems and workflows via Slack/Teams by means of API and bots. It includes a dashboard that Authorized Users can view to detect and manage data security risks relating to employee workflows, including unauthorized use, and disclosure of Company Data. Implementation and Access to Customer Systems. Customer shall cooperate with Provider with respect to the implementation and integration of the Service with Customer Systems. Customer authorizes Provider to integrate the Service with Customer Systems and Devices and access such Customer Systems and Devices, including logs of activity and workflows, through API and bots. Customer shall be responsible for notifying all employees and contractors that their activity, communications, and workflows will be accessed by Provider for the purposes specified herein and for providing all notices and obtaining all consent from such individuals as may be required under applicable law. “Customer Systems” means any employee workflow (e.g. Slack, Teams), server systems, mobile devices, networks, personal computers, or other equipment owned, operated, or managed by Customer that is accessed by the Service and on which the Service is accessed. Access to Service. Subject to Customer’s compliance with this Agreement, Customer and its designated Authorized Users shall have non-exclusive right to access the Service commencing on the Start Date through the Trial Period for the Free Service and the Subscription Term for the Paid Service. The “Start Date” is the earlier of the date you register for or start using the Service. Registration. Customer is responsible for designating the employees and contractors authorized to access the Service on behalf of Customer (“Authorized User”). Each Authorized User will need to register and create an account with Provider to access the Service. You will need to create a username, password, and provide certain information about yourself as prompted by the registration form, including your name and a valid email address. You agree to provide full, complete, and accurate information when registering or creating an account, and to update that information promptly if it should change. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this Agreement. You may not create more than one account without prior written approval from us. You will not transfer your account to any other party without our prior written consent. You agree that your username and password is Provider’s Confidential Information and not to disclose or transfer your username or password to any third party. You are responsible for any use of your account, whether authorized or not. You agree to immediately notify Provider if there is any unauthorized use of your account. License to Company Data. Customer hereby grants Provider a non-exclusive, royalty-free, fully paid-up, sublicensable (through one or more tiers of sublicensees), and transferable license to use, reproduce, create derivative works of, distribute, perform, and display Customer Content for the purpose of (i) providing the Service, and (ii) developing, maintaining, supporting, or improving the Service. Customer acknowledges and agrees that Provider may aggregate Customer Content with other data and also collect technical information and data about Customer’s use of the Service. “Company Data” means any data, links, information, media, content, or materials provided, disclosed, posted, or delivered by Customer via the Service. Customer shall not provide, disclose, or deliver any Customer Content to Provider that Customer does not own or otherwise have a valid authorization or license to do so. Restrictions. Customer may access and use the Service only for Customer’s internal business purposes. Customer may access and use the Free Service solely to evaluate the Service to determine if the Service meets Customer’s needs. Customer shall use the Service only in conformity with the Documentation. Customer shall not, and shall not permit any Customer employees or contractors to, share any account or access credentials for the Service with third parties. Customer shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use. Customer shall notify Provider immediately of any actual or alleged unauthorized use of the Service. “Documentation” means the documentation, including any specifications, feature lists, or other similar characteristics, provided to Customer that describes the functionality of the Service. Customer shall not (and not allow, permit, authorize, or assist any third party to): (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Service; (ii) use or integrate the Service, or any component thereof, with any software, hardware, or system other than the Customer Systems (as defined below) without Provider’s express prior written agreement; (iii) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or include any part of the Service in a service bureau or outsourcing offering, or encumber the Service with any lien or grant a security interest in the Service; (iv) publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Service; (v) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (vii) access the Service for the purposes of monitoring its availability, performance, or functionality; (viii) access, or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service, or copy any features, functions, or graphics of the Service; (ix) attempt to disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; (x) use the Service to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; or (xi) take any action that imposes, or may impose, at Provider’s sole discretion, an unreasonable or disproportionally large load on Provider’s infrastructure. Customer Systems. Customer is solely responsible for the operation and maintenance of the Customer Systems and for having and paying for all equipment and internet access necessary to access and use the Service. Provider disclaims all warranties, express or implied, and shall have no liabilities to Customer, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damage attributable thereto, including any interruption or damage caused to Customer Systems as a result of the Service. During the Term, Customer shall provide Provider with all access credentials, passwords, security protocols, and other information relating to Customer Systems required for the implementation and operation of the Service. Such credentials, passwords, protocols, and information will be Customer’s Confidential Information. Feedback. Customer may have the opportunity to present to Provider recommendations or feedback for new features, functionality, or other improvements to the Service (“Feedback”), which Provider will consider, at its sole discretion, implementing in future updates to the Service. The Parties agree that all Feedback is and shall be given voluntarily. Feedback, even if designated as confidential by Customer, shall not, absent a separate written agreement, create any confidentiality obligation for Provider. Customer will not provide Provider with any Feedback that Customer is not authorized or permitted to provide to Provider. Provider shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it without payment or compensation of any kind, as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Changes to Service. Customer understands and agrees that Provider may change or discontinue the Service or change or remove functionality of the Service at any time in Provider’s sole discretion. Provider will use commercially reasonable efforts to notify Customer of any material change to or discontinuation of the Service. Ownership. Except for the rights expressly granted in this Agreement, Provider retains all right, title, and interest, including all intellectual property rights, in and to the Service and the Documentation and the Resultant Data (as defined in Section 2.7 below). No implied license or right is granted by Provider by estoppel, reliance, or otherwise. Except for the rights expressly granted in this Agreement, Customer retains all right, title, and interest, including all intellectual property rights, in the Customer Content.
CONFIDENTIALITY Confidential Information. The term “Confidential Information” means any information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether before or after the Effective Date, that: (i) is in written, graphic, machine readable, or other tangible form and is marked “Confidential,” “Proprietary,” or in some other manner to indicate its confidential nature; (ii) should be reasonably understood by Receiving Party to be the confidential or proprietary information of Disclosing Party; or (iii) that is oral information disclosed by Disclosing Party to Receiving Party, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by Disclosing Party within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Receiving Party. The Service and Documentation shall be Provider’s Confidential Information. Confidentiality. Receiving Party shall treat as confidential all Confidential Information of Disclosing Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, Receiving Party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of Disclosing Party. Receiving Party shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Disclosing Party’s Confidential Information. Exceptions. Confidential Information excludes information that Receiving Party can show: (i) was in the public domain at the time it was disclosed or has become in the public domain through no act or omission of Receiving Party; (ii) was known to Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information; or (iv) becomes known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of an obligation to keep such information in confidence. Compelled Disclosure. If the Confidential Information of Disclosing Party must be disclosed by Receiving Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, Receiving Party shall: (i) provide prompt notice thereof to Disclosing Party; (ii) use its commercially reasonable efforts to cooperate with Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the exact Confidential Information (or portion thereof) required to be disclosed. Confidentiality of Agreement. Customer agrees that the terms and conditions, but not the existence, of this Agreement shall be treated as Provider’s Confidential Information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of Provider; provided, however, that Customer may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of Receiving Party; (iv) in connection with the requirements of an initial public offering or securities filing; (v) in confidence, to accountants, banks, and financing sources and their advisors; (vi) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like. Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, Receiving Party shall deliver to Disclosing Party all of Disclosing Party’s Confidential Information that Receiving Party may have in its possession or control or, at Disclosing Party’s option, shall destroy all such Confidential Information and certify such destruction in a writing signed by an authorized officer of Receiving Party. Resultant Data. Notwithstanding anything to the contrary in this Agreement, Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Content and data derived therefrom) (collectively, “Resultant Data”), and Provider will be free (during and after the term of this Agreement) to (i) use such Resultant Data to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and other Provider offerings, and (ii) disclose such Resultant Data solely in aggregate or other de-identified form, provided that we will not disclose Customer or any specific Confidential Information of Customer in connection with Provider’s use of such Resultant Data.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER Organization; Authority. Each Party represents and warrants to the other Party that such Party is a corporate entity duly organized, validly existing, and in good standing under the laws of the state or country first indicated above as such Party’s state or country of incorporation, and such Party has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. Customer Warranties. Customer hereby represents and warrants to Provider that: (i) Provider’s use, reproduction, modification, distribution, performance, and display of the Customer Content will not infringe, violate, or misappropriate any intellectual property rights of a third party; (ii) Customer exclusively owns or has a valid and written license agreement to all Customer Content provided to Provider via the Service or otherwise and has all rights necessary to grant to Provider the rights and licenses contained in this Agreement; (iii) Customer’s providing, disclosing, and delivering of Customer Content will not violate any applicable laws, regulations, contractual commitments or privacy commitments; and (iv) the Customer Content does not include any viruses, trap doors, time bombs, Trojan horses or other malicious code. Disclaimer. THE SERVICE IS PROVIDED BY PROVIDER “AS IS,” AND NEITHER PROVIDER NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND PROVIDER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. PROVIDER DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET CUSTOMER’S REQUIREMENTS, OR BE SECURE.
ORDERS, FREE AND PAID SERVICE Order. Customer may order the Service by executing an order form in the form specified by Provider (“Order Form”). The Order Form shall specify whether there is any free trial period (“Trial Period”), the subscription term (monthly, annual) (“Subscription Term”), the fees to be paid, the Customer Systems to be monitored by the Service, the number of Authorized Users, and any other special terms and conditions. No Order Form is binding on Provider until accepted in writing by Provider. The Subscription Term shall automatically renew for successive Subscription Terms of equal length on the terms of the Order unless terminated by either party prior to the end of the then-current Subscription Term, provided that any price increases as specified in Section 4.3 shall take effect at the beginning of the next Subscription Term. Free Service. If Provider provides the Service free of charge during a Trial Period (“Free Service”), then such Service will be provided on as-is basis without any obligation of indemnity or warranty of any kind. Provider may terminate the Free Service at any time at its sole discretion. At the end of the Trial Period, the Service will convert to a paid Service according to the Provider’s then-standard rates for the Service for a monthly Subscription Term, unless Customer cancels the Service prior to the end of the Trial Period. Fees and Payment. Customer shall pay all fees and charges for the Service as specified by Provider in the Order Form. Customer is responsible for paying all taxes incurred in connection with the Service, including sales, use and VAT taxes, except to taxes on Provider’s income. Any late payments shall accrue interest at the rate of 12% per annum or the maximum amount permitted by law, whichever is lower. Provider also reserves the right to increase fees at any time on 30 days’ notice, provided that any fee increase will not apply until the next Subscription Term. INDEMNIFICATION Customer Indemnity. Customer, at its expense, shall defend, or at Customer’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against Provider, its affiliates, and its and their directors, employees, agents, and representatives (the “Provider Indemnified Parties”) alleging: (i) death, personal injury, or damage to property (whether real or personal); (ii) any costs, damages, liabilities, losses, or expenses arising out of use of the Service (except for Claims Against Customer); (iii) costs, damages, liabilities, losses, or expenses arising out of any act or omission by Customer; (iv) facts, that if true, would constitute a breach of Customer’s representations, warranties, and covenants under this Agreement; (v) Provider’s using, reproducing, modifying, distributing, performing, or displaying of the Customer Content infringes, violates, or misappropriates any intellectual property, privacy or other right, or any law, regulation, or order relating to privacy of personal data (each a “Claim Against Provider”), and shall indemnify and hold harmless the Provider Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against a Provider Indemnified Party arising out of or in connection with a Claim Against Provider. The applicable Provider Indemnified Party shall notify Customer promptly in writing of the Claim Against Provider, provide reasonable assistance in connection with the defense and settlement thereof, and permit Customer to control the defense and settlement thereof. Customer shall not settle any Claim Against Provider without Provider’s prior written consent. A Provider Indemnified Party may, at its expense, participate in any Claim Against Provider with counsel of its choice. . Provider Indemnity. Provider, at its expense, shall defend, or at Provider’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against Customer, its affiliates, and its and their directors, employees, agents, and representatives (the “Customer Indemnified Parties”) alleging that the Service (excluding the Customer Data) if used in accordance with this Agreement infringes, violates, or misappropriates any intellectual property, privacy or other right, or any law, regulation, or order relating to privacy of personal data (each a “Claim Against Customer”), and shall indemnify and hold harmless the Customer Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against a Customer Indemnified Party arising out of or in connection with a Claim Against Customer. The applicable Customer Indemnified Party shall notify Provider promptly in writing of the Claim Against Customer, provide reasonable assistance in connection with the defense and settlement thereof, and permit Provider to control the defense and settlement thereof. Provider shall not settle any Claim Against Customer without Customer’s prior written consent. A Customer Indemnified Party may, at its expense, participate in any Claim Against Customer with counsel of its choice.
LIMITATION OF LIABILITY IN NO EVENT WILL PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, SECURITY, OR DATA BREACH, LOSS OF REVENUE OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED $100. THE DISCLAIMERS AND LIMITATIONS IN SECTION 3.3 AND THIS SECTION 6 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. TERM AND TERMINATION Term. The term of this Agreement shall commence on the Start Date and continue until the expiration of the Trial Period or the Subscription Term, whichever is later, hereunder or as earlier terminated in connection with this Section. Any Subscription Term shall automatically renew for successive Subscription Terms of equal length unless either Party provides notice of non-renewal prior to the end of the then current term. Termination for Breach. Provider may terminate this Agreement upon written notice to the Customer in the event that Customer materially breaches this Agreement and fails to cure such material breach within 30 days after receipt of written notice thereof. Suspension and Termination. Notwithstanding anything to the contrary in this Agreement, if Customer violates the restrictions set forth in Section 1.6 or Section 2, Provider may immediately upon written notice to Customer, suspend or terminate Customer’s access to the Service. Effect of Termination; Survival. Expiration or termination of this Agreement will not relieve Customer of its obligations to pay any amounts accrued or otherwise owed under this Agreement. Upon expiration or termination of this Agreement, all licenses or rights granted to Customer hereunder shall terminate and Customer shall not, and shall not attempt to, access or use the Service. The provisions of Sections 1.5-1.8, and 2–9 shall survive any expiration or termination of this Agreement. DISPUTE RESOLUTION Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Provider’s or its licensor’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), all claims arising out of or relating to this Agreement and your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitration will take place in Santa Clara County, California. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Provider is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
GENERAL PROVISIONS Force Majeure. Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either Party will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles. Each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in the State of California with regard to any dispute arising out of or relating to this Agreement that is not subject to arbitration. The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods. Injunctive Relief. Customer acknowledges and agrees that any breach of its obligations with respect to Confidential Information and intellectual property rights may cause substantial harm to Provider, which could not be remedied by payment of damages alone. Accordingly, Customer hereby agrees that Provider will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach. Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever. Binding Effect. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns. Amendments. No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of both Parties. Partial Invalidity. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. No Waiver. No waiver of any term or condition of this Agreement will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto. The word “including,” when used herein, is illustrative rather than exclusive and means “including, without limitation.” Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter. Assignment. Customer shall not assign or delegate this Agreement or any of its licenses, rights, or duties under this Agreement (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of Provider, and any purported assignment shall be void and of no force or effect. Provider may freely assign or delegate this Agreement or any of its licenses, rights, or duties hereunder in Provider’s sole discretion. Notices. Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by reasonable means to the address of each Party set forth above. Such notice will be deemed to have been given when delivered, or, if delivery is not accomplished as a result of some action or inaction by the recipient, when tendered.