Emotions drive decisions

Business User Terms of Service

 

THIS BUSINESS USER TERMS OF SERVICE (“AGREEMENT”) IS A BINDING AND VALID LEGAL AGREEMENT BETWEEN (1) THE INDIVIDUAL OR ENTITY USING THE PATHOSAI PLATFORM AND PATHOSAI SERVICES (COLLECTIVELY, “CLIENT” OR “YOU”) AND (2) EIRYAM INC. (“PATHOSAI”, “WE”, OR “US”). THIS AGREEMENT, INCLUDING ALL TERMS LISTED ON THE SERVICE PROPOSAL SET FORTH THE ENTIRE AGREEMENT BETWEEN CLIENT AND US.

BY USING THE PATHOSAI SERVICE DESCRIBED HEREIN, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT DESIRE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT USE PATHOSAI PLATFROM AND PATHOSAI SERVICES DESCRIBED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ALL AUTHORIZED USERS TO THIS AGREEMENT. IN THAT CASE, THE TERMS “CLIENT”, “YOU” OR “YOUR” SHALL ALSO REFER TO SUCH ENTITY AND ITS AUTHORIZED USERS, AS APPLICABLE. IF YOU DO NOT HAVE SUCH AUTHORITY, YOUR ORGANIZATION AND YOU MAY NOT USE THE PATHOSAI SERVICE. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS A CONTRACT BETWEEN YOUR ORGANIZATION, YOU AND US, EVEN THOUGH IT IS ELECTRONIC AND IS NOT PHYSICALLY SIGNED AND IT GOVERNS YOUR USE OF THE PATHOSAI SERVICE.

It is often said that the life of a data scientist is disproportionately-dominated by acquiring, labeling, transforming, and feeding data into these models. This is often not the exception but the rule and is also true here at Pathos where we deal with a large amount of data. With such data comes the inherent responsibility of protecting this data, ensuring the use of this data is compliant with local regulations, and determining what parts of the data are useful.

Although Pathos is a young startup, we’ve taken great lengths to make sure that we are operating as responsibly as possible.

 

1. Definitions

The following capitalized terms shall have the meanings ascribed to them as follows:

“Account Owner” means an employee of Client who has been authorized by the Client and assigned a unique username-password combination to access and use the PathosAI Service and given the ultimate ownership and control of the PathosAI Service account for which Client has registered; the Account Owner is also an Authorized User.

“Authorized User” means an employee of Client who has been authorized by the Client and assigned a unique username-password combination to access and use the PathosAI Service.

“Client Data” means any data, files, text, graphics, images, software, works of authorship of any kind, and information or other materials that Client transmits to, uploads to, transfers to, processes on, stores in, or causes to interface with, the PathosAI Service.

“Client Social Network Information” is all Client information from Client’s social network accounts (Facebook, Twitter, etc.) that Client makes available to PathosAI through use of the PathosAI Service.

“Documentation” means the user documentation for the PathosAI Service that PathosAI makes generally available to users.

“Internal Use” means use of the PathosAI Service to communicate with Consenting Customers only.

“Privacy and Security Policy” means PathosAI’s privacy and security policy related to use of the Platform accessible at https://pathosai.io/data-privacy/

“PathosAI Materials” means the PathosAI Service, any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by PathosAI or its personnel in connection with providing the PathosAI Service and related services.

“PathosAI Service” means PathosAI’s emotional engagement measurement and insights generally made available to its customers and all related services provided.

 

2. Account Registration Process

2.1 In order to access and use the PathosAI Service, Client will need to register and create an account (“Account”) and, via registration, identify and appoint an Account Owner through provision of either an email address or mobile phone number and the creation of a password. The Account Owner shall own the process of communicating to PathosAI to add other Authorize Users (and assign roles). Client and its Account Owner are solely responsible for explaining to each Authorized User how other Authorized Users (depending on role assignment) may have rights to access an Authorized User’s account and obtain information through such access or use of an Authorized User’s account.

2.2 Client agrees to provide accurate, current and complete information about the Account, which includes all individual Authorized User Accounts. PathosAI reserves the right to suspend or terminate the Client Account or any individual Authorized User’s Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading.

2.3 Client is responsible for maintaining the confidentiality of Client’s passwords and Account, including all usernames and passwords information assigned to its Authorized Users, and agrees to notify PathosAI if any of the passwords is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Client is responsible for all activities that occur under the Client Account, including the activities carried out by individual employees.

 

3. Rights to Use the PathosAI Service; Rights to Amend This Agreement

3.1 Subject to Client’s compliance with this Agreement, PathosAI grants Client a limited, non-exclusive, non-transferable, revocable license during the Term to access and use the PathosAI Platform via PathosAI’s cloud-based services (subject to Client’s having a valid Account as described in Section 7 below), solely for Client’s Internal Use. Such access and use is expressly limited to Authorized Users. Client’s rights in the PathosAI Service will be limited to those expressly granted in this Section 3. PathosAI and its licensors reserve all rights and licenses in and to the PathosAI Service not expressly granted to Client under this Agreement. PathosAI may change or update the PathosAI Service or certain features thereof from time to time, without prior notice to Client.

3.2 We are a vibrant company with a lot of ideas. Therefore, we need to reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the PathosAI Service (or any part thereof) with or without notice. You agree that PathosAI shall not be liable to you or to any third party for any modification, suspension or discontinuance of the PathosAI Service (or any part thereof). We also reserve the right, in its sole discretion, to change, modify, add, or delete portions of this Agreement at any time by requiring you to agree to any such changes upon your attempt to continue to use the PathosAI Service. Your continued use of the PathosAI Service in any manner after any such changes occur shall constitute your acceptance of the new terms. Should you have any questions regarding the specific terms of this Agreement (as amended), please direct them to engage@pathosai.io. Notwithstanding the foregoing, we will take reasonable efforts to provide notice to you (push notification, text message, or other automated format) of any material and substantial changes to this Agreement.

 

4. Prohibitions and Use Policies

4.1 Client acknowledges that the PathosAI Service contains trade secrets of PathosAI and its licensors, and, in order to protect such trade secrets and other interests that PathosAI and its licensors may have in the PathosAI Service, Client may not, and Client agrees not to, reverse engineer, decompile or disassemble the PathosAI Service. In addition, Client may not, and Client agrees not to: (i) sell or sublicense the PathosAI Service; (ii) modify the PathosAI Service; (iii) distribute or copy the PathosAI Service in whole or in part; (iv) use the PathosAI Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or PathosAI’s applicable documentation; (v) access or use any areas of the PathosAI Service for which PathosAI has not granted Client authorization, or tamper or interfere with PathosAI’s computer systems or the technical delivery systems of PathosAI’s providers; or (vi) encourage, authorize, or enable anyone to do any of the foregoing.

4.2 Client acknowledges and agrees that PathosAI is not required to monitor or police communications or data transmitted through the PathosAI Service and that PathosAI shall not be responsible for the content of any such communications or transmissions. Client shall use the PathosAI Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Client shall keep confidential and not disclose to any third-parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third-parties, any user identifications, account numbers or account profiles.

4.3 Client represents and warrants that all use and usage of the PathosAI Service will at all times comply with all applicable laws, including but not limited to the rules, policies and regulation of personal data; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities.

4.4 CLIENT ACKNOWLEDGES THAT THE PATHOSAI SERVICE IS NOT DESIGNED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE PLAN SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.

 

5. Fees

5.1 Depending on the Service plan for which you registered your Account, you will have selected a payment plan and will have agreed to have provided correct credit card or other payment instruments and billing information. You understand and agree that we can and do use third-party payment processors and you authorize us (and our payment processing vendors) to bill your credit card or other payment instruments in accordance with your payment plan. We may elect to bill you through an invoice, in which case, full payment shall be due as specified on the applicable invoice. Past due fees are subject to a finance charge of 1.5% per month or the highest amount permitted by applicable law (if less), plus all expenses of collection.

5.2 Changes to your fees may be made in accordance with your chosen payment plan provided, however, if no such terms are included, we have the right to change the fees for your payment plan on thirty (30) days notice to you sent to the email of your Account Owner. Your continued use of the PathosAI Service shall constitute your agreement to any price changes. You agree that you must dispute any charges levied by us against you within 60 days after the earlier of the date (i) we bill your credit card or other payment processors or (ii) we invoice you. All amounts paid to us by you are non-refundable.

 

6. Ownership

PathosAI and its licensors reserve sole and exclusive ownership of PathosAI Materials, and all copyrights, patents, trademarks, and other intellectual property rights therein. PathosAI Materials do not include Client Data. Client may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the PathosAI Service. If Client provides PathosAI with any suggestions, comments, or other feedback regarding the PathosAI Service (“Feedback”), Client acknowledges that such Feedback will become the exclusive property of PathosAI, and PathosAI may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Client and without implying or creating any interest on Client’s part in any of PathosAI’s products or services that may be based on such Feedback. Client hereby irrevocably assigns and agrees to assign to PathosAI all right, title, and interest in any Feedback Client provides.

 

7. Term and Termination; Suspension

7.1 This Agreement will commence on the date your registration is completed and continue until your Account or this Agreement is terminated as described herein (the “Term”). All service plans associated with your account that are billed and paid (i) quarterly will automatically renew for additional one (1) quarter periods and (ii) yearly will automatically renew for additional one (1) year periods.

7.2 You may deactivate your Account at any time by following the protocols required under the PathosAI Service or otherwise contacting us at engage@pathosai.io and following our manual deactivation protocols. You will remain responsible for any fees that may be owed to us under your applicable service plan.

7.3 PathosAI may suspend your Account (including individual Authorized User’s Account) and Client’s use of the PathosAI Service as PathosAI deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the PathosAI Service. Upon termination, PathosAI shall have no obligation to maintain Client Data or provide Client Data to you. If your Account is terminated by you, we will use your Client Data solely as permitted under the Client Data License.

7.4 Either of us may terminate this Agreement (including the associated service plan) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of a written notice thereof.

7.5 Upon the expiration or termination of this Agreement, Client will, within thirty (30) days after receipt of PathosAI’s invoice, pay all accrued and unpaid fees. All provisions of this Agreement that, by their nature, should survive termination of this Agreement, shall survive.

 

8. Data Ownership; Access to Information

8.1 PathosAI does not claim any ownership rights in Client Data. Nothing in this Agreement will be deemed to restrict any rights that Client may have to use and exploit Client Data. Client hereby grants to PathosAI a non-exclusive, perpetual, worldwide license to use, reproduce and transfer Client Data solely in connection with Client’s use of the PathosAI Service, our development and improvement of the PathosAI Service (including, without limitation, machine learning, neural networks, etc.), and PathosAI’s provision of the PathosAI Service to Client (the “Client Data License”). Client represents and warrants that Client or Client’s licensors own all right, title and interest in and to Client Data and that Client has all rights in Client Data necessary and sufficient to transmit to, upload to, transfer to, process on, store in, or cause to interface with, Client’s Account or the PathosAI Service, and to grant the rights contemplated by this Agreement. Client is solely responsible for all of Client Data, including but not limited to the development, transmission, operation, maintenance, storage, claims, and use of Client Data.

8.2 Client consents to PathosAI’s access, collection, transmission, storage, monitoring, copying, processing, analysis and use of Client Data to administer, develop and improve the PathosAI Service and PathosAI’s other products and services, and to monitor compliance with this Agreement.

8.3 PathosAI maintains the right, title, and interest in and to any data or information regarding the use or optimizing the use or sale of the PathosAI Service, so long as such data does not include Client Data.

8.4 Client hereby consents to PathosAI accessing and using Client Social Network Information, wherever needed, in order to provide the PathosAI Service on behalf of Client.

8.5 PathosAI retains complete rights to all the data it collects itself or through 3rd parties it employs. In all these cases, clauses 8.1 to 8.4 shall not apply to such data.

 

9. Data Maintenance

PathosAI will follow its internal archival procedures for Client Data; provided, however, in the event of any loss or corruption of Client Data, PathosAI will be required only to use commercially reasonable efforts to restore the lost or corrupted Client Data from the latest backup of such Client Data maintained by PathosAI. PathosAI shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Client Data caused for any reason. PATHOSAI’S EFFORTS TO RESTORE LOST OR CORRUPTED COMPANY DATA PURSUANT TO THIS SECTION 9 SHALL CONSTITUTE PATHOSAI’S SOLE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF COMPANY DATA.

 

10. Privacy and Security Policy

PathosAI’s Privacy and Security Policy is incorporated herein for all purposes and each Party agrees to the provisions contained therein. If any portion of this Agreement conflicts with any portion of the Privacy and Security Policy, the Privacy and Security Policy shall govern for all purposes.

 

11. Warranty

Disclaimer. TO THE EXTENT PERMITTED BY LAW, THE PATHOSAI SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND PATHOSAI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, PATHOSAI SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY SERVICE OR PRODUCT OFFERED BY PATHOSAI WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT SERVICE OR PRODUCT OFFERED BY PATHOSAI WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR USE OF THE PATHOSAI SERVICE OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT PATHOSAI CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT PATHOSAI CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

 

12. Indemnity

Client will indemnify, defend and hold harmless PathosAI and its officers, directors, employee and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and professional fees, arising out of or in any way connected with (i) Client’s access to or use of the PathosAI Service, (ii) any violation of this Agreement by Client, or (iii) the Client Data, provided that PathosAI: (a) promptly notifies Client in writing of the claim; (b) grants Client sole control of the defense and settlement of the claim; and (c) provides Client, at Client’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. For purpose of this Section, Client shall mean Client and any Authorized User.

 

13. Limitation of Liability

13.1 Consequential Damages. IN NO EVENT SHALL PATHOSAI BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF PATHOSAI HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.

13.2 Direct Damages Cap. EXCEPT AS SET FORTH BELOW, PATHOSAI’S TOTAL AGGREGATE LIABILITY TO CLIENT SHALL NOT EXCEED, IN ANY EVENT, THE FEES PAYABLE BY CLIENT TO PATHOSAI HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY.

13.3 Scope and Exceptions. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION ENTITLED (LIMITATION OF LIABILITY):
I. SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW;
II. SHALL NOT DISCLAIM, LIMIT, OR CAP CLIENT’S OBLIGATIONS TO PATHOSAI;
III. REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES; AND
IV. SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND SHALL APPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

 

14. Dispute Resolution

14.1 In the event of any dispute, claim, question, or disagreement between Client and PathosAI (“Dispute”), Client and PathosAI shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, Client and an authorized member of PathosAI’s legal department (or other representative of PathosAI designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither Client nor PathosAI shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.

14.2 Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.

14.3 In the event of any litigation (including arbitration) between Client and PathosAI, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.

14.4 Client agrees that any Disputes shall be adjudicated in the courts of Ontario, Canada. Client agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. Client hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that Client may have to assert that such forum is not convenient or that any such court lacks jurisdiction.

14.5 Client agrees that any breach of PathosAI’s intellectual property rights will cause PathosAI irreparable harm for which monetary damages will be inadequate and PathosAI may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.

14.6 Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to Client.

 

15. Class Action Waiver

Any actions, lawsuits, shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity.

 

16. Publicity

Client agrees that PathosAI may identify Client as a customer of the PathosAI Service, and display Client’s name and logo (if any) in connection with such identification, on PathosAI’s websites and in PathosAI’s other published marketing materials. PathosAI will use good-faith efforts to comply with any reasonable trademark usage guidelines Client provides to PathosAI in connection with Client’s name and logo.

 

17. General

17.1 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent and any attempt to do so will be void, except that PathosAI may assign this Agreement, without Client’s consent, to a successor or acquirer, as the case may be, in connection with acquisition of PathosAI by operation of law or via the sale of all or substantially all of PathosAI’s assets. Notwithstanding the foregoing, if any successor or acquirer of PathosAI or its assets is a direct competitor of Client, Client shall have the right to terminate this Agreement without further obligation provide a notice of termination is delivered by Client to PathosAI and any such successor or acquirer within thirty (30) days after notice is delivered to Client by PathosAI or its successor/assignor of such acquisition. Subject to the foregoing, this Agreement will bind and benefit the Parties and their respective successors and assigns.

17.2 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.

17.3 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

17.4 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii)one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) twenty-four (24) hours after having been sent via electronic mail to the contact person at the address listed in each instance on Key Agreement Terms page unless a Party notifies the other Party in writing of a change to the contact person and/or the contact person’s contact information. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either Party to the other Party in accordance with this Section.

17.5 Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each Party.

17.6 Entire Agreement. This Agreement, constitutes the complete and exclusive agreement of the Parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties hereto.

17.7 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.