Terms Of Services Agreement
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, YOUR AGENTS AND YOUR END-USERS, WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”) as defined in the Reconstruct Order Form (“Order Form”). If You are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Reconstruct that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services.
The purpose of this Agreement is to establish the terms and conditions under which You may purchase Reconstruct’s Services as described in an Order Form signed by You.
2. Conflicting Terms
In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form, the terms of the Order Form shall control.
The term of this Agreement shall commence on the Effective Date and continue in full force for the period as set forth in the Order Form.
4. Access to Services, Products, and Software
Subject to the terms and conditions of this Agreement and payment of all relevant fees, Reconstruct grants You and Your End Users a non-exclusive, non-transferable license to access and use Reconstruct’s hosted services, as identified in the Order Form, (the “Services“), associated software (the “Software”), associated documentation that Reconstruct makes generally available to its customers (the “Documentation”) and any hardware (“Hardware”) as listed in the Order Form, all solely for Your internal business purposes. You and your End Users may only use the Services and Software described in this Agreement, any Order Form, and the Documentation. You are responsible for ensuring End Users comply with all relevant terms of this Agreement, and any failure to comply will constitute a breach by You. Except as expressly authorized by this Agreement, You will not, and will not enable any End User or other third party to: (i) permit anyone to access or use the Services or Software or Hardware other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the intellectual property embodied in the Services or Software; (iii) use the Services, Software, or any Reconstruct Confidential Information to develop a competing product or service; (iv) use any Service or Software, or allow the transfer, transmission, export, or re-export of any Service or Software or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation, Software, and Services, including any screen displays, etc., or any other products or materials provided by Reconstruct hereunder. Under no circumstances will Reconstruct be liable or responsible for any use, or any results obtained by the use, of the Services or Software or Hardware in conjunction with any services, software, or hardware that Reconstruct does not provide. All such use will be at Your sole risk and liability. For purposes of this Agreement, “End Users” means Your employees, contractors, and representatives who are authorized to access the Services or Software on Your behalf.
The hosted elements of the Services will be available for remote access 99.95% of the time each calendar month of the Term, excluding Excused Outages (“Availability”). “Excused Outages” shall mean:
a. Your environment issues affecting connectivity or interfering with the Services, including Your telecommunications connection or any other of Your software or equipment, Your web sites, Your firewall software, hardware, or security settings, Your configuration of anti-virus software, anti-spyware, or malware software, or operator error of Yours;
b. any failure of third-party software, hardware, or telecommunication services not provided by Reconstruct, including Internet slowdowns or failures;
c. Force Majeure Events (See Section 14.3);
d. issues related to third-party domain name system (DNS) errors or failures;
e. scheduled maintenance of the Services or Software, conducted on a regular basis of which Reconstruct will give You a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification.
6. Support Services
Reconstruct shall provide the support and maintenance services described in this Section 4 (Support Services) during the Term (collectively, the “Support Services”). Reconstruct will provide You with reasonable telephone support Monday through Friday during Reconstruct’s regular business hours, excluding federal holidays. Reconstruct will provide You with Software and Services updates and bug fixes that Reconstruct, in its sole discretion, generally makes available to its other similarly situated customers at no charge. However, You shall not be entitled to receive updates or new releases that include new or different functionality for which Reconstruct imposes an additional charge to its other customers. Such new or different functionality may be purchased by You at Reconstruct’s then-current pricing. Reconstruct will use commercially reasonable efforts to correct reproducible failures of the Services or Software to perform in substantial accordance with the then-current Documentation.
7. Training and Services
Reconstruct shall provide the training and services if any, as outlined in the Order Form.
8. Fees and Expenses
8.1 Fees. The fees for the Services during the Initial Term and any Hardware shall be outlined in the Order Form. Except as expressly set forth otherwise in this Agreement, all fees are non-refundable. You will pay all invoices within the terms specified in the order form. Payments not made in that time will be subject to late charges equal to the lesser of (a) one (1%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid past its due date, Reconstruct may, in its discretion, suspend the Services until the invoice is paid in full.
8.2 Taxes. All Fees and other amounts payable by You under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Reconstruct’s income.
8.3 Reoccurring Payments; Changing Subscriptions. You will purchase a subscription to the Services. All subscriptions are billed in advance and are nonrefundable. You agree that Reconstruct will invoice at the start of the Term. Any extension of the subscription beyond the Effective End Date in Order Form shall be mutually agreed to in writing by You and Reconstruct.
9. Your Responsibilities
Except as otherwise outlined in the Order Form, You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, Your login information, passwords, and files, and for all uses of Your account or the Equipment with or without Your knowledge or consent. You are solely responsible for all telecommunication or Internet connections required to access the Services and all hardware and software at Your site. In addition to other third-party costs that may apply, You agree to pay for all telecommunications costs, fees, and services required for and dedicated to Your access to the Services. You shall, either directly or through third parties, maintain and enforce safety and physical security procedures concerning the access, use, and possession of the Equipment that (a) are at least equal to industry standards and (b) provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access to the information found therein. Without limiting the generality of the preceding, directly and/or through third parties, You will take all reasonable measures to secure and defend the Equipment against “hackers” and others who may seek, without authorization, to modify or access the Equipment or the information found therein. You shall, either itself or through third parties, maintain and enforce safety and physical security procedures concerning the access, use, and possession of the Equipment that (a) are at least equal to industry standards and (b) provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access to the information found therein. Without limiting the generality of the preceding, directly and/or through third parties, You will take all reasonable measures to secure and defend the Equipment against “hackers” and others who may seek, without authorization, to modify or access the Equipment or the information found therein. You shall contact Reconstruct immediately upon knowing or suspecting that a third party accessed passwords.
10. Representations and Warranties
10.1 Reconstruct Warranty. Reconstruct represents and warrants that it has the full power, capacity, and authority to enter into and perform this Agreement and to make the grant of rights contained herein, and its performance of this Agreement or provision of the Services does not violate or conflict with any agreement or any applicable law to which Reconstruct is party. Reconstruct further represents and warrants that the Software shall conform with the Documentation and that all Services shall be provided in a timely, professional, and workmanlike manner.
10.2 Warranty. You represent and warrant that, at all times during the Term of this Agreement, You shall have the full power to enter into and perform this Agreement and to make the grant of rights contained herein, and Your performance of this Agreement and use of the Services shall not violate or conflict with any applicable law or any agreement to which You are party.
10.3 Disclaimer of Other Warranties. EXCEPT AS PROVIDED IN SECTION 10.1 (RECONSTRUCT WARRANTY), THE SERVICES, SOFTWARE, AND RECONSTRUCT’S WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. EACH PARTY AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF A PARTY’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET, AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED THIRD PARTIES (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE A PARTY’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. NEITHER PARTY WILL BE RESPONSIBLE FOR SUCH ACTIVITIES. EACH PARTY IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA. PHOTOS, VIDEOS, AND TEXTS ILLUSTRATING AND DESCRIBING THE SERVICES, IF ANY, INDICATED ON THE RECONSTRUCT WEBSITE ARE NON-CONTRACTUAL AND ARE PROVIDED FOR INFORMATION PURPOSES ONLY. THE INFORMATION PROVIDED ON THE RECONSTRUCT WEBSITE DOES NOT REPRESENT AN OFFER FROM RECONSTRUCT (WHO DOES NOT GUARANTEE THE ACCURACY THEREOF) AND SHALL IN NO EVENT CONSTITUTE A GUARANTEE OR PROMISED WARRANTIES.
11. Confidentiality & Proprietary Rights
11.1 Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (from now on referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Reconstruct includes non-public information regarding features, functionality, and performance of the Services and Software and all trade secrets, know-how, methodology, techniques, processes, and other proprietary information contained therein and related to it. Confidential Information of the Yours includes non-public information regarding its customers, vendors, shareholders, directors, employees, business practices, project management techniques, financial condition, and all trade secrets, know-how, methodology, techniques, processes, and other proprietary information related to it. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of services, provision of the Services, or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the preceding shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or generally becomes available to the public, or (ii) was in its possession or known by it before receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without the use of any Confidential Information of the Disclosing Party, or (v) is required to be disclosed by law, provided such disclosure is made in accordance with Section 9.4 (Compelled Disclosures).
11.2 Ownership; Feedback. As between You and Reconstruct, You shall own all right, title, and interest in and to the data You load into the Services and Software (“Your Data”). Reconstruct shall own and retain the all right, title, and interest in and to (a) the Services, Software, the Documentation, and all improvements, enhancements, or modifications to it made by Reconstruct, (b) any software, applications, inventions, or other technology developed by Reconstruct in connection with the Services and Software, and (c) all intellectual property rights related to any of the preceding. Each Party may provide suggestions, comments, or other feedback (collectively, “Feedback”) to the other Party concerning the other Party’s business or services, including the Services and Software. Feedback is voluntary, and the receiving Party is not required to hold it in confidence. The receiving Party may use Feedback for any purpose without obligation or restrictions of any kind. To the extent a license is required under a Party’s intellectual property rights to make use of the Feedback, each Party hereby grants the other Party an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with the other party’s business or services, including the enhancement of the Services and Software.
11.3 Usage Data. Notwithstanding anything in this Agreement to the contrary, Reconstruct shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and Software and related systems and technologies (including, without limitation, information concerning Your Data and data derived from that place), and Reconstruct will be free (during and after the Term hereof) to (a) use such information and data to improve and enhance the Services and Software and for other development, diagnostic, and corrective purposes in connection with the Services and Software and other Reconstruct offerings, and (b) disclose such data solely in aggregated or other de-identified form in connection with its business. Reconstruct acknowledges and agrees that any of Your Data or other information or materials obtained from You is provided “as is” and “with all faults,” and Reconstruct shall defend, indemnify, and hold harmless You and Your directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, reasonable attorneys’ fees, experts’ fees, and court costs, arising out of or relating to Reconstructs activities under this section. No rights or licenses are granted except as expressly set forth herein.
11.4 Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement and prior to disclosing Confidential Information pursuant to it, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days before the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and assist the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
11.5 Return of Your Data; Archival Service. Upon expiration or termination of this Agreement for any reason, You may elect, for an additional fee, to have Reconstruct continue to store Your Data. If You do not so elect, then Reconstruct will promptly make all of Your Data available to You for electronic retrieval for a period of three (3) months. Notwithstanding the preceding, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the preceding destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
11.6 Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 9 (Confidentiality; Proprietary Rights) will constitute a material breach of this Agreement and be grounds for termination if the breaching Party does not cure such breach within one (1) week.
12.1 In General. Through one or more third-party hosted service providers (e.g., Amazon Web Services, Oracle, Azure, and Google as examples), Reconstruct will maintain and enforce safety and physical security procedures with respect to its access, use, and possession of Your Confidential Information, including Your Data, that (a) are at least equal to industry standards for such types of data, and (b) provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access of such information. Without limiting the generality of the preceding, directly and/or through one or more third-party hosted service providers, Reconstruct will take all reasonable measures to secure and defend its location and equipment against “hackers” and others who may seek, without authorization, to modify or access Reconstruct systems or the information found therein.
13.1 By Reconstruct. Reconstruct agrees to defend, indemnify, and hold harmless You and Your directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, reasonable attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party (each a “Claim”) that Your authorized use of the Services or Software infringes or misappropriates a patent, trademark, copyright, trade secret or other intellectual property rights enforceable in the United States. You shall: (a) give Reconstruct prompt written notice of such Claim, and (b) once Reconstruct has accepted the tender of Your defense, allow Reconstruct to control, and reasonably cooperate with Reconstruct (at no charge to Reconstruct provided Reconstruct pays for all out-of-pocket expenses) in the defense and all related negotiations. Reconstruct shall not enter into any stipulated judgment or settlement that purports to bind You without Your express written authorization, which shall not be unreasonably withheld or delayed; provided You shall have no obligation to authorize a judgment or settlement that requires an admission of guilt by You or the payment of any amounts not indemnified for hereunder. If, due to a claim of infringement, the Services or Software is held by a court of competent jurisdiction to be or is believed by Reconstruct to be infringing, Reconstruct may, at its option and in its sole discretion, (i) replace or modify the Services and Software to make them non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) procure for You the right to continue using the Services and Software pursuant to this Agreement or (iii) terminate this Agreement and refund to You the Fees You paid to Reconstruct in the year prior to the Claim arising.
13.2 By You. You agree to defend, indemnify, and hold harmless Reconstruct and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, reasonable attorneys’ fees, experts’ fees, and court costs, arising out of any Claim based on Your use of Your Data or Your unauthorized use of the Services and Software. Reconstruct shall: (a) give You prompt written notice of such Claim; and (b) once You has accepted the tender of Reconstruct’s defense, allow You to control, and reasonably cooperate with You (at no charge to You provided You pay for all out of pocket expenses) in, the defense and all related negotiations. You shall not enter into any stipulated judgment or settlement that purports to bind Reconstruct without Reconstruct’s express written authorization, which shall not be unreasonably withheld or delayed; provided Reconstruct shall have no obligation to authorize a judgment or settlement that requires an admission of guilt by Reconstruct or the payment of any amounts not indemnified for hereunder.
14. Disclaimer of Consequential Damages; Limitation of Liability
EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU TO RECONSTRUCT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO LIABILITY.
15.1 Termination. Each Party shall have the right to terminate this Agreement upon thirty (30) days written notice in the event: (i) the other Party materially breaches any provision hereof and does not cure such breach within such thirty (30) day notice period; or, (ii) upon written notice by either Party, immediately, if (a) a receiver is appointed for the other Party or its property; (b) the other Party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (c) any proceedings (whether voluntary or involuntary) are commenced against the other Party under any bankruptcy or a similar law and such proceedings are not vacated or set aside within sixty (60) calendar days from the date of commencement thereof.
15.2 Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (i) You and all End User’s access to and use of the Services will cease as of the effective date of termination; (ii) You will pay to Reconstruct all undisputed sums due to Reconstruct for Services through the effective date of such expiration or termination (prorated as appropriate); and, (iii) Reconstruct will reasonably cooperate with You in transitioning Your Materials back to You at commercially reasonable, mutually agreed upon, hourly rates. (iv) Reconstruct will provide You with a pro-rata refund of payments previously made to Reconstruct to the nearest month of unused tenure of the effective period.
15.3 Survival. The following Sections shall survive any termination or expiration of this Agreement: 10 (Representations and Warranties); 11 (Confidentiality; Proprietary Rights); 13 (Indemnification); 14 (Disclaimer of Consequential Damages; Limitation of Liability); 15.3 (Survival); and 16 (General Provisions).
16. General Provisions
16.1 Independent Contractor. Reconstruct is an independent contractor and is not an agent or employee of, and has no authority to bind, You by contract or otherwise. Further, it is not the intention of this Agreement or of the Parties to confer a third-party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
16.2 Assignment. Neither party may assign, transfer, or delegate its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, that either party may assign or transfer this Agreement, without obtaining prior consent, in connection with the sale of substantially all of its stock or assets. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties and their successors, assigns, and legal representatives.
16.3 Force Majeure. If either Party cannot perform any of its obligations because of any act of God, court order, war, or any other cause not within the Party’s reasonable control and could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing Party will: (a) immediately notify the other Party; (b) take reasonable steps to resume performance as soon as possible, and (c) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure event continues for more than 30 days, the Party not suffering the Force Majeure Event may terminate this Agreement without further obligation.
16.4 Governing Law; Venue. The Parties agree that the exclusive jurisdiction for any action regarding this Agreement shall be the courts of San Mateo County, CA.
16.5 Affiliates, Subcontractors, and Reconstructs. Some or all of the Services, including Support Services, may be provided by Reconstruct’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Reconstruct may be, in whole or in part, exercised or fulfilled by the preceding entities. Reconstruct shall ensure such entities comply with all relevant terms of this Agreement, and any failure to do so shall constitute a breach by Reconstruct.
16.6 Publicity. Reconstruct may identify You as a client in its Customer listings, Websites, and other promotional materials. Reconstruct shall promptly remove Your name and trademarks from its Websites and promotional materials upon request. In addition, Reconstruct may issue a mutually agreed upon press release regarding the Parties’ new relationship under this Agreement.
16.7 Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver, in whole or in part, of any provision of this Agreement, will not be considered a waiver of any other provision.
16.8 Severability. If any term of this Agreement is unenforceable or invalid for any reason, all other terms will remain in full force and effect.
16.9 Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection, or another subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”
16.10 Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties, and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the Parties. Except as otherwise expressly set forth herein, this Agreement may only be amended in a writing and signed by both Parties.
16.11 Notices. All notices under this Agreement will be in writing (including by email) and will be deemed to have been duly given when received if delivered personally; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices under this Agreement to Reconstruct shall be sent to the following address:
16.12 Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.
16.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and will become effective and binding upon the Parties as of the Effective Date at such time as all the signatories hereto have signed a counterpart of this Agreement.
16.14 Electronic Signatures Binding. This Agreement and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent), and Your acceptance will be deemed binding between the Parties. Each Party acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Each Party further acknowledges and agrees that it will not contest the validity or enforceability of a signed electronic copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Electronic signatures shall be considered valid signatures as of the date hereof.
Last Updated 3-28-22.