Lattice Terms of Service

LAST UPDATED: February 7, 2020

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Welcome to Lattice.  By subscribing to the Service(defined below), or by checking or selecting an “I agree” or similarly worded box or button indicating your acceptance of these Terms of Service, you(“Customer”) agree to be bound by these Terms. If you are accepting these Terms on behalf of a company or other entity, you represent that you have the authority to, and do hereby, bind such entity by these Terms, and references to “Customer,” “you” or “your” will refer to such entity.  If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and neither you nor such entity may use the Service. 

In theseTerms of Service (the “Terms”), references to “Company,” “we,” “us,” and “our”refer to Degree, Inc., a Delaware corporation (d/b/a Lattice), and references to the “Service” refer to the online service(s) subscribed to by you and made available by us, which may include premium features or other related services, and including any offline components and any content, software, data and information provided by us or our licensors through or in connection with the foregoing.  We and you are each sometimes referred to herein as a “party.”

 

1.                 PROVISION OF THE SERVICE 

1.1                  Subscription. Access to the Service is purchased on a subscription basis by a written order form signed by both parties, or in another manner agreed by the parties (in each case, an “Order Form”). Subject to these Terms, we hereby grant you a non-exclusive, non-sublicensable, non­transferable (except as provided herein) license, during the Term (defined below), to access and use the Service solely for your internal business purposes and in accordance with any documentation made available by us relating to the Service, and we will use commercially reasonable efforts to make theService available to you on a 24 by 7 basis in accordance our standard practice. 

1.2                  Technical Support, Privacy and OtherObligations. Subject to the terms hereof, we will provide you with technical support services in accordance with our standard practice. When you register to use the Service, we will provide tools to authenticate use of your account. You and your users’ email addresses and any other information will be treated in accordance with our Privacy Policy, and all applicable laws. We will maintain administrative, technical, and procedural safeguards designed to protect all confidential information (including any personal data) from unauthorized access, disclosure, or loss that are no less protective than the standards we use with respect to our own content and data, but that are at a minimum commercially reasonable and compliant with all applicable laws.

1.1             Updates. We reserve the right to update, upgrade or otherwise modify the Service at any time and with or without notice; provided, however, that we will provide you with at least forty-five (45) days advance notice of any modification that materially diminishes or reduces the functionality of the Service. We may suspend provision of the Service, at anytime with reasonable notice (except in emergency cases relating to security or adverse impacts on the Service), for security or maintenance purposes or as required by applicable law. We will use commercially reasonable efforts to minimize the duration of any such suspension.

1.2               Third-Party Services. The Service may allow you to connect toor otherwise interact with one or more third-party service providers (for example, a human resources information system) for purposes permitted by theService. Such access may be implemented, suspended or terminated by us from time to time in our sole discretion. It is your sole responsibility to enter into and maintain any agreement between you and any such third party for the provision of their services to you or otherwise, and we are not hereby made a party to such agreement. To the extent you or your representatives orAuthorized Users use the Service to transmit any Customer Content (defined below) to any such third party, you direct and authorize us to provide suchCustomer Content to such third party. To the extent you or your representatives or Authorized Users use the System to connect or otherwise interact with any such third party, or have identified or designated any such third party as your third-party service provider, you authorize us to allow such third party to access your Customer Content as necessary for us to provide the Service to you.You acknowledge and agree that such third parties are not our agents, that we are not responsible for their services, actions or omissions or for their maintenance or treatment of your Customer Content, that we will not be liable for any damage or loss caused thereby, that access to such third party via theService does not imply any endorsement by us, and that any of your CustomerContent submitted to such third parties via the Service will be governed by your agreement (if any) with such third party.

1.3               Privacy Compliance. Each party’s performance hereunder will be in compliance with such party’s privacy policy and all applicable privacy laws (including without limitation, as applicable, United States, Canada and European Economic Area),rules and regulations. Unless otherwise agreed in writing by the parties, any processing of Personal Information (defined below) must be in accordance with the DPA.

2.                TERM AND TERMINATION

 

2.1                 Term. With respect to eachOrder Form, unless sooner terminated as provided in this Section 2, these Terms will be effective beginning on the Effective Date and remain in effect until these Terms or such Order Form expires in accordance with its terms or is terminated in accordance with these Terms. The “Effective Date” means the Effective Date specified in the applicable Order Form. The “InitialService Term” means the period from the Effective Date through the InitialService Term specified in the applicable Order Form.

 

2.2                Termination for Breach. Either party may terminate these Terms or any Order Form if the other party materially breaches these Terms and fails to cure such breach within thirty (30) days after it receives written notice of such breach. A material breach includes, without limitation, a failure to make a full and timely payment (not disputed in good faith), or a commission of any of the acts contemplated in Section 4.1.

 

2.3                 Auto-Renewal. With respect to eachOrder Form, after the Initial Service Term, such Order Form and these Terms will remain in effect for consecutive Renewal Terms until terminated as provided herein. A “Renewal Term” means that period immediately following the Initial Service Term and each Renewal Term, which period is of the same duration as the Initial Service Term (collectively, theRenewal Term and the Initial Service Term are referred to as the “Term”). Either party may terminate these Terms or such Order Form by giving the other party written notice of such termination at least thirty (30) days prior to the end of the then-current Initial ServiceTerm or Renewal Term, in which case such termination will be effective at the end of such Initial Service Term or Renewal Term.

 

2.4                  Changes. Without limiting the foregoing, if we provide you with notice of a modification to the Service that materially diminishes or reduces the functionality of the Service, you may terminate these Terms or the applicable Order Form by giving us at least thirty(30) days advance written notice of such termination, such notice to be provided within thirty (30) days after we provide you with notice of such modification or amendment.

 

2.5               Effect of Termination. Upon termination of these Terms or an Order Form, any related prepaid Fees for Services not yet provided will be refunded to you. Sections 2 (Term and Termination), 3(Ownership), 6 (Confidentiality), 7 (Payment of Fees) (with respect to Fees accrued prior to termination), 8 (Warranties and Disclaimer), 9(Indemnification), 10 (Limitation of Liability), 11 (Dispute Resolution), and12 (General) will survive any termination of these Terms. Termination of theseTerms with respect to one Order Form does not terminate these Terms with respect to any other Order Form.

 

3.                 OWNERSHIP

 

3.1                       Company Properties. As between you and us, the Service and the software that operates the Service (“Software”) and all content therein (excluding Customer Content, defined below) (collectively, the “Company Properties”), any all and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein(registered or unregistered), are the exclusive property of us and our suppliers. All rights in and to Company Properties not expressly granted to you in these Terms are reserved by us and our suppliers. You will not copy, transmit, transfer, modify or create derivative works of the CompanyProperties, and will not reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Company Properties.

3.2             Customer Content. As between you and us, you are the owner of the content, information, and other data uploaded by you to the Service or Software, or otherwise provided or made available by you or your representatives or third-party service providers in connection with your use of the Service (collectively, “CustomerContent”). You hereby grant us a non-exclusive, worldwide, royalty-free and fully paid license, during the Term, to use the Customer Content as necessary for the purpose of providing the Service to you.

3.3             Anonymized, AggregatedData. We may collect data or information generated by or submitted or uploaded to theService relating to the number of times Customer uses the Service features such as the number reviews, evaluations, or goals only in an anonymized, aggregated form.  Such anonymized, aggregated data or information shall not contain any text narrative which is or was part ofCustomer Content, Customer confidential information, or data or information that can be used to identify Customer, an Authorized User, or any individual.

4.                CUSTOMER RESPONSIBILITIES

 

4.1                 Use Restrictions. You will not, and will not permit any Authorized User to: (a) permit any person or entity to access the Service, other than Authorized Users to the extent authorized under theseTerms; (b) use the Service except in accordance with these Terms, the Documentation and applicable law; (c) modify, adapt, alter, copy or translate the Service; (d) sell, resell, license, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (e) use the Service to store or transmit any“viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (f) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of third-party privacy or other rights; (g) access the Service in order to build a competitive product or service; (h) interfere with or disrupt the integrity or performance of the Company Properties; or (i) attempt to gain unauthorized access to the Company Properties.

 

4.2                Required Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to the Internet in order to access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”),excluding the equipment and technology necessary for us to host and make theService available to you. You are responsible for maintaining the security of the Equipment.

 

4.3             Export Compliance. You represent that you are not named on any United States government denied-party list. You agree not to export, re-export, or transfer, directly or indirectly, any technical data acquired from us, or any products utilizing such data, in violation of UnitedStates export laws or regulations. You will not permit any Authorized User to access or use the Service (i) if such person is a resident of a country embargoed by the United States, (ii) if such person is a person or entity blocked or denied by the United States government, or (iii) otherwise in violation of United States export laws or regulations.

 

5.                 CUSTOMER USERS & REGISTRATION

 

5.1             Administrative User. With respect to eachOrder Form, you will have registered with the Service and will identify an administrative contact, including user name and password, for your account. You are required to maintain and promptly update all information provided by you during your registration process, and any other information you provide to us, so that it remains true, accurate, up-to-date and complete at all times. You represent and warrant that all such information provided by you is true, accurate and complete at the time it is provided.

 

5.2                 Authorized Users. For purposes of theseTerms, “Authorized User” means each of your employees, contractors and other individuals whom you identify to us byname as being authorized to use the Service on your behalf. A unique username and password will be provided for each Authorized User to enable suchAuthorized User to access the Service on your behalf in accordance with theseTerms. We reserve the right to change or update such usernames and passwords in our sole discretion from time to time. Each such username and password may not be shared and may only be used to access the Service during one (1) concurrent login session. You (a) will provide us with information and other assistance as reasonably necessary to enable us to establish such usernames and passwords;(b) will verify all requests for such usernames and passwords; (c) are responsible for maintaining the confidentiality of all such usernames and passwords; (d) are solely responsible for all activities that occur under such usernames; and (e) will notify us promptly of any actual or suspected unauthorized use of your account or such usernames or passwords, or any other breach or suspected breach of these Terms.

 

6.                 CONFIDENTIALITY

 

6.1                      Each party may have access to the other party's information, which will be deemed “Confidential Information” if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, Personal Information (defined below), business plans and any information that provides a competitive advantage. All non-public aspects of the Service are deemed our Confidential Information. For purposes hereof, “Personal Information” means any non-public personal information, personally identifiable information, or information relating to an identified or identifiable natural person, where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

 

6.2                 The receiving party will use the same degree of care as it uses to protect its own Confidential Information of a like nature, but not less than a reasonable degree of care, to (a) prevent use or copying of the disclosing party's Confidential Information for any purpose other than to perform its obligations or exercise its rights as provided under these Terms, and (b)prevent disclosure of the disclosing party's Confidential Information other than to its employees (or agents bound by similar confidentiality obligations)with a need to know for such purpose. Confidential Information will remain the property of the disclosing party and will be returned or (along with all copies) destroyed upon request, at which time the receiving party will provide to the disclosing party a written certification of such return or destruction.Without limiting any other provision of these Terms, with respect to its obligations under this Section 6, the receiving party will be responsible for the acts and omissions of its employees, contractors and agents to the same extent as if those acts and omissions were those of the receiving party.

 

6.3                 Information will not be deemed Confidential Information hereunder if it: (i) is not Personal Information and is or becomes generally known to the public through no fault of the receiving party, its affiliates or their agents or representatives; (ii) is or becomes known to the receiving party without restriction from a third party other than as a result of breach of contract or wrongful or tortious act; or (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party'sConfidential Information. Confidential Information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.

 

7.                 PAYMENT OF FEES

 

7.1              Fees. You will pay us the fees set forth in the applicable Order Form (other than fees disputed in good faith) in accordance with the terms therein (the “Fees”). Any Fees per Authorized User will apply with respect to the initial number of Authorized Users identified in the Order Form, plus any additional actual Authorized Users (on a pro-rated basis based on when such additional Authorized Users are added.) With respect to any Order Form, we may increase the Fees in effect at the start of any Renewal Term by giving you at least forty-five (45) days advance written notice of such increase.

 

7.2                Payment. If you pay your Fees by credit card, you hereby authorize us and our third-party payment service providers to collect all due and payable Fees using the credit card or other payment method you provide to us, and you must keep the payment method and other billing information you provide to us current at all times; any change in such method or information will not affect charges we submit via the prior payment method and information before we reasonably could act on the change. Except as otherwise set forth in the applicable Order Form or as otherwise agreed by the parties in writing, the initial annual fee is due payable to us within thirty(30) days of the effective date specified in the order form of this agreement and all future invoices, fees and any other applicable charges are due and payable to us within thirty (30) days after the date of our applicable invoice.All Fees and other amounts are payable in United States Dollars.

7.3             Late Payments. If you fail to make payments (not disputed in good faith) when due under these Terms, and after continued non-payment for a period of fifteen (15) days after we provide you with written notice and an opportunity to cure, we may suspend provision of the Service until payment is received and may charge you a late fee on the overdue amount from the date such amount became due at the lesser rate of 1.5% per month or the maximum rate permitted by applicable law, together with our costs incurred in collecting such payment. We are entitled to withhold performance and suspend provision of the Service until all undisputed amounts due are paid in full.

 

7.4            Taxes. Fees do not include any taxes, levies, duties, export or import fees, or other governmental assessments of any nature, including but not limited to value-added sales, use or withholding taxes, imposed or assessed by any jurisdiction (collectively, “Taxes”). You are responsible for the payment of all applicable Taxes (other than Taxes assessable against us based on our income, property, franchise or employment) associated with your subscription to the Service. If we have a legal obligation to collect and remitTaxes for which you are responsible, we will invoice you and you will pay us that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

8.                 WARRANTIES ANDDISCLAIMER

 

8.1            We hereby represent and warrant that:

a.     we have the power and authority to enter into these Terms and are not subject to any agreements that conflict with our undertakings hereunder;

 b.    we own, or otherwise properly license, the Software, and the Service, and have the full power and authority, required to use, publish, transfer, and/or license any and all rights and interests in and to the Software and Service to you;

c.     we shall provide and perform all Software and Service in a professional and workmanlike manner in accordance with prevailing industry standard and practices for similar services; and

d.    all Software, Service,Company Properties, and any other content provided to you under this Agreement shall comply with applicable law.

8.2            EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS,” AND WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESSED,IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. 

8.3            You hereby represent and warrant that:

a.     you have the power and authority to enter into these Terms and are not subject to any agreements that conflict with its undertakings hereunder;

b.    you own, or otherwise properly license, the Customer Content; and

c.     the Customer Content provided to us under this Agreement shall comply with any applicable law.

9.                 INDEMNIFICATION

9.1                By Us. We will defend, indemnify, and hold harmless you and your officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys' fees) arising out of any claim by any third party to the extent such claim:

a.     alleges that theService or Software (in each case as made available to you for use in accordance with these Terms)  infringes or misappropriates any copyright, trade secret recognized under the UniformTrade Secrets Act, or U.S. patent. Notwithstanding the foregoing, we will have no obligation under this paragraph and will not otherwise be liable to the extent the claim is based on: (i) use of the Service or Software in combination with any hardware, software, data, content, or other component not provided by us (other than Equipment required for use of the Service or Software as permitted hereunder); (ii) Customer Content; or (iii) use of the Service orSoftware other than in accordance with these Terms and the Documentation; or

b.    is based on or related to our violation of applicable law.

9.2                 By You. You will defend, indemnify and hold harmless us and our officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys' fees) arising out of any claim by any third party to the extent such claim is based on or related to your use of the Service in violation of this Agreement, your Customer Content, or your violation of applicable law or the rights of any third party.

9.3                Procedures. The person or entity seeking indemnification hereunder (the “IndemnifiedPerson”) will provide detailed written notice to the indemnifying party promptly after learning of the claim, and the indemnifying party will not be obligated to indemnify only to the extent it is materially prejudiced by any delay in such notice. The indemnifying party will have the right to assume control of the defense and settlement of the claim (provided that the prior, written agreement of the indemnified party will be required in order to enter into any settlement or compromise that does not include a full release of the indemnified party or that requires any payment or admission of wrongdoing by the indemnified party), in which case the Indemnified Person (i) will provide reasonable assistance at the indemnifying party's reasonable expense and (ii)may employ counsel at its own expense. If we believe our intellectual property is or may become the subject of a claim of infringement or misappropriation, we may, at our option and expense, procure for the right to use the intellectual property, or modify or replace the intellectual property to make it non-infringing and functionally equivalent. If we reasonably conclude that neither of these alternatives is reasonably available, we may require the return or destruction of its intellectual property upon written request and the termination of these Terms to the extent performance is based upon or involves the use of such intellectual property, in which case you would be entitled to are fund of any prepaid fees for the period after termination.

 

10.         LIMITATION OF LIABILITY

EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FORANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES(INCLUDING BUT NOT LIMITED TO LOSS OF DATA, USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION ORTHE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING EXCLUSION SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR NOTIFICATION AND REMEDIATION COSTS (INCLUDING COSTS TO REPAIR DAMAGES CAUSED TO THIRD PARTIES) THAT RESULT FROM A PARTY’S BREACH OF THE CONFIDENTIALITY, PRIVACY ORDATA SECURITY CLAUSES OF THIS AGREEMENT.

EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN AND BREACH OFTHE CONFIDENTIALITY OR PRIVACY AND DATA SECURITY OBLIGATIONS IN THIS AGREEMENT,  EACH PARTY'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INITIAL EVENT CAUSING OR RESULTING IN SUCH LIABILITY.

 

11.             DISPUTERESOLUTION

 

11.1            Arbitration. The parties will attempt in good faith to resolve any dispute arising out of or relating to theService or these Terms by negotiation. Any such dispute not so resolved will be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (except to the extent that such rules are inconsistent with the provisions set forth herein). Such dispute will be heard in San Francisco County, California, by one neutral arbitrator (unless the amount in dispute is greater than $1,000,000, in which case three arbitrators will be used). The arbitrator(s) will have the authority to award compensatory damages only, and will not have the authority to consolidate actions or claims. The award rendered by the arbitrator(s) will be final and binding, and judgment upon such award may be entered in any court having jurisdiction thereof. Notwithstanding any other provision herein, any demand by a party for arbitration must be made in writing to the other party within the period prescribed by the state or federal statute of limitations applicable to the claim upon which the demand is based. If demand is made after such period, the claim will be void and deemed waived. The existence, conduct and content of such arbitration will be kept confidential, and neither party will disclose the same to any person other than its attorneys, auditors,financial advisors, assignees or potential assignees, except as may be required by law or governmental authority or for financial reporting purposes.

 

11.2           Limitations Period. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or the use of the Service must filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.

 

11.3           Injunctive Relief. Notwithstanding any other provision hereof, either party may seek to enforce its rights here under with respect to the protection of its Confidential Information or intellectual property through temporary or permanent injunctive relief, which will be in addition to any other available relief and which will not require a bond or security. Each party acknowledges that any breach by a party of its obligations hereunder with respect to the Confidential Information or intellectual property rights of the other party might constitute immediate, irreparable harm to such other party for which monetary damages would be an inadequate remedy.

 

12.             GENERAL

 

12.1            Notice. All notices and other communications given or made pursuant to these Terms will be in writing and will be deemed effectively given upon the earliest of (i) actual receipt, (ii)personal delivery to the recipient, or (iii) any of the following if addressed to the recipient as set forth below: (a) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. For purposes hereof, each recipient's address and email address will be as set forth in theOrder Form (or, with respect to your addresses, as provided by you during registration or onboarding with the Service), as such contact information maybe subsequently modified by the recipient by written notice given in accordance with this paragraph. We may provide notices to you using the electronic messaging system included in the Service, in which case such notice will be deemed given when sent, if sent during your normal business hours, and if not sent during such normal business hours, then on your next business day.

 

12.2            Assignment. Neither party may assign or otherwise transfer these Terms or any rights or obligations here under without the written consent of the other party, except that either party may, without such consent, assign or transfer these Terms to an Affiliate or a purchaser of all substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise. TheseTerms are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

12.3            Force Majeure. Neither party will be liable for any delay or failure to perform its obligations hereunder resulting from any cause beyond such party's reasonable control, including weather, fire, floods, labor disputes, riots or civil disturbances, acts of government, and acts of war or terrorism, provided that, in every case, the delay or failure to perform is beyond the control and without the fault or negligence of the party claiming excusable delay and that such party cures the breach as soon as possible after the occurrence of the unforeseen event.

 

12.4            Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for theInternational Sale of Goods does not apply to these Terms.

 

12.5            Public Announcements. You grant us the right to use your name, logo, trademarks and/or trade names in press releases, webpages, product brochures and financial reports indicating that you are a customer of ours. All other public statements or releases will require the mutual consent of the parties.

 

12.6            Relationship ofParties. Neither these Terms nor the cooperation of the parties contemplated under these Terms will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.

 

12.7            Waiver. Any provision of theseTerms may be waived only in a writing signed by the party to be bound thereby.Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

12.8            Severability. If any provision of these Terms is, for any reason, held to be invalid, illegal, or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

 

12.9            Entire Agreement These Terms (including any Order Form incorporated herein) and its exhibits and attachments constitute the entire agreement of the parties relating to the subject matter hereof and supersedes all prior or contemporaneous communications, understandings and agreements, oral or written, relating to such subject matter.

 

12.10         Construction. These Terms will be construed as a whole, according to its fair meaning, and not in favor of or against any party. Headings are used for reference purposes only and should be ignored in the interpretation of these Terms. All pronouns will be interpreted to refer to the masculine, feminine or neutral gender as appropriate. Whenever the words “include,” “includes” or “including” are used in these Terms, they will be deemed to be followed by the words “without limitation.”

 

12.11         Amendments. No amendment of thisAgreement will be effective unless contained in a written agreement signed by both parties that specifically purports to amend this Agreement.