Partner Program Agreement.
This Partner Program Agreement (“Agreement”) governs your access to the Talkdesk Partner Community and participation in the Talkdesk Partner Program (“Program”). BY PARTICIPATING IN THE PARTNER PROGRAM, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM. IF YOU (I) DO NOT AGREE WITH ANY PART OF THIS AGREEMENT OR (II) ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ORGANIZATION, YOU MAY NOT PARTICIPATE IN THE PARTNER PROGRAM.
The parties therefore agree as follows:
1.1. “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
1.2. “Authorized User(s)” means Customer’s employees and independent contractors working for or on behalf of Customer in the ordinary course of Customer’s business for whom access to the Talkdesk Services have been purchased from Partner in accordance with an executed Reseller Addendum to this Agreement, regardless of actual usage.
1.3. “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary,” or which the recipient knows or has reason to know is regarded by the disclosing party as such, including oral information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release with the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
1.4. “Customer(s)” means individuals or entities to which Partner has re-sold Services in accordance with an executed Reseller Addendum to this Agreement.
1.5. “Customer Data” means all electronic data or information submitted by Customers to the Services.
1.6. “Damages” means any damages awarded by a court of competent jurisdiction against either party (or agreed to in a settlement) resulting from an indemnification claim, including any awarded costs and awarded attorneys’ fees.
1.7. “Talkdesk Marks” means the trademarks, trade names, service marks, and logos owned or otherwise used by Talkdesk. Nothing contained herein shall grant you any ownership right in the Talkdesk Marks or any other Talkdesk intellectual property.
1.8. “Talkdesk Partner Portal” or “Partner Portal” means the web portal used by Talkdesk for the purpose of communicating and exchanging information, details, guides, and standards between Talkdesk and Partner. Partner Portal also includes access to, without limitation, the support dashboard and any training platforms made available to applicable Partners.
1.9. “Talkdesk Services” means the software as a service and communication services (e.g., products, services, and minutes) provided by Talkdesk as may be modified by Talkdesk to maintain or improve the quality or marketability of the Talkdesk Services or to bring Talkdesk’s provision of the Talkdesk Services into compliance with applicable law.
1.10. “Third-Party Data” means any information regarding any third-party, including information relating to an identified or identifiable person.
1.11. “Third-Party Product(s)” means a Web-based, mobile, offline or other software application functionality that interoperates with the Talkdesk Services, that is provided by Partner, Customer, or a third party and/or listed on a Marketplace.
2. Program Overview.
2.1. Joining the Program. To join the Program, you must agree to the terms of this Agreement, as well as any additional terms that may be required (“Additional Terms”) and be accepted by Talkdesk into the Program. Acceptance into the Program does not provide distribution rights for the Talkdesk Services, nor does it contemplate any kind of Partner relationship between Talkdesk and Partner, which are governed by separate and additional terms. Any Additional Terms are incorporated by reference into this Agreement.
2.2. Your Conduct. You will at all times: (a) conduct your activities in the Program in a professional and competent manner and, when applicable, in accordance with guidelines contained in the Talkdesk Partner Portal and the Talkdesk Acceptable Use Policy; and (b) not engage in any harmful, false, or deceptive acts or practices.
2.3. Marketing Activities. Following the execution of this Agreement, the parties may issue a joint press release highlighting the relationship contemplated by this Agreement. Notwithstanding the foregoing, neither party will publish a press announcement related to this Agreement without prior written consent of the other party.
3. Intellectual Property Ownership.
3.1. Technology. Except as otherwise provided in this Agreement, nothing in this Agreement transfers or assigns to either Party any of the other Party’s intellectual property or other proprietary rights in the other Party’s technology, products, or services, including without limitation the Talkdesk Services.
3.2. Trademarks. Each party (the “Licensor”) hereby grants the other party (the “Licensee”) a nonexclusive, limited license to use the Partner’s or Talkdesk’s names, logos and trademark as specified in writing (collectively the “Marks”) in any advertising, promotional, marketing or other materials, to (i) promote the relationship of the parties; (ii) in the case of Partner, identify Talkdesk as a provider of Talkdesk Products and to market and promote the Talkdesk Products; and (iii) in the case of Talkdesk, identify Partner as a participant in the Program and to market and promote any Partner products or services. Partner’s specific use of Talkdesk Marks is governed by the then-current version of the Talkdesk Brand Guidelines document or such other written guidelines provided by Talkdesk to Partner for use in connection with the Program. The Talkdesk Brand Guidelines document is available on the Partner Portal and may be updated from time to time. Talkdesk’s specific use of Partner’s Marks is governed by the written guidelines provided by Partner to Talkdesk. The party that provides the Marks (“Licensor”) reserves all right, title and interest (including, without limitation, any intellectual property rights) that it may have in any of its Marks, including any associated goodwill related thereto or arising from the use of the Licensor’s Marks by the other party (“Licensee”). Except as expressly provided herein, no license or right in any trademark or associated goodwill of either party is granted or otherwise transferred by virtue of this Agreement. Licensor may terminate the license to its Marks upon written notice to the Licensee in which case Licensee shall cease using the Marks in new material and on its website and dispose of printed materials bearing the Marks within a reasonable time-frame, but no such withdrawal will require the recall of any previously published or distributed materials.
4. Program Benefits.
4.1. Talkdesk Material. Talkdesk may, in its sole discretion, make available to Partner as part of the Program, development and/or support tools, such as software development kits, access to support dashboard(s), and other materials to assist Partner with the development and deployment of Partner products that interoperate with the Talkdesk Services. Such materials may be provided to (i) select partners (potentially including or excluding Partner), (ii) all partners with a certain status, (iii) all partners regardless of status and/or (iv) generally to all partners and Talkdesk end customers. Talkdesk, in its sole discretion, will make such Talkdesk SDKs and other material available under separate signed license agreements, click-to-accept agreements or such other mutually agreed upon written arrangements.
4.2. Partner Tier Changes. During the term of this Agreement, Partner must comply with any and all applicable requirements for its assigned tier to maintain the benefits associated with that tier. Partner acknowledges that Talkdesk reserves the right to upgrade or downgrade Partner’s tier assignment if it fails to comply with any such requirements.
4.3. Market Development Funds. Talkdesk may allow qualifying partners to use market development funds in the manner specified in writing and as determined by Talkdesk in its sole discretion.
5. Non-Exclusivity; Freedom of Action.
5.1. Non-Exclusive. The Parties obligations under any part of this Agreement or any Additional Terms are mutually non-exclusive. Talkdesk is not precluded from marketing, licensing, positioning, providing, and/or distributing Talkdesk Services through other partners.
5.2. Independence. Partner acts in its own name, at its own risk, and for its own account for the performance of any activities arising under any part of this Agreement or any Additional Terms. The Parties are therefore independent contractors and do not act as agent or representatives of each other. This Agreement does not create a legal partnership (notwithstanding any use of the term “partner” by the parties), joint venture, agency relationship, or franchise under any applicable laws. Neither party shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
5.3. Mutual Obligations. Neither party shall by way of statement, act, or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.
6.1. Confidentiality Obligation. Neither party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those this Section 6. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
6.2. Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
6.3. Other Exemptions. Notwithstanding the foregoing provisions in this Section 6, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the- counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement, (ii) in confidence to legal counsel, (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available, (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of this Agreement, (v) in confidence, to auditors, accountants, legal counsel and their advisors, (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure
6.4. Compelled Disclosure. If a receiving party is compelled by law to disclose Confidential Information of a disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
7.1. General Compliance. Partner shall comply with: a) all applicable laws and regulations regarding the general conduct of business including all relevant anti-corruption and anti- bribery laws, including, without limitation, the United States Foreign Corrupt Practices Act and the U.K. Bribery Act; b) all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries; and c) all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the U.K. Modern Slavery Act 2015. Partner represents that no illegal or improper bribe, kickback, payment, gift, or thing of value has been or will be offered, authorized, promised, provided or paid, directly or indirectly, to any government official, state-owned enterprise official, public international organization official, political party official (or candidate for such office) or political party for the purpose of influencing official acts and decisions (including failures to act or decide) in order to assist Talkdesk in obtaining or retaining an improper business advantage. Partner will promptly notify Talkdesk if it receives a request to take any action which may violate its obligations under this Section or any applicable anti-corruption law.
7.2. Export Control Laws. Each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. You represent and warrant that you, or any party that owns or controls you, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software, or technology of Talkdesk or its affiliates to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including to any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority unless such activity is authorized by law pursuant to a license or other government authorization.
8. Changes to Terms. Talkdesk reserves the right to modify this Agreement or any terms or policies of the Program by posting a revised version on the Partner Portal or posting a new version of the Agreement at this website url. Partner’s continued participation in the Program after such update constitutes agreement with any such changes.
9. Suspension of Access to Partner Portal. Talkdesk reserves the right, at any time and for any reason, to suspend Partner’s access to the Partner Portal.
10. Term; Termination.
10.1. Term. This Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 10.
10.2. Termination Rights.
10.2.1. Either party may terminate this Agreement with ninety (90) days advance written notice to the other party.
10.2.2. Talkdesk may also terminate this Agreement or any Additional Terms immediately upon notice to you if: (a) you are in material breach and fail to cure within a reasonable time period specified by Talkdesk, (b) in Talkdesk’s absolute discretion, your participation in the Program could subject Talkdesk or its Affiliates to harm, or (c) in order to comply with the law or requests of governmental entities.
10.2.3. In addition, either party may terminate this Agreement upon written notice to the other party if: (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the party breaches its confidentiality or privacy related obligations under this Agreement, or (3) infringes or misappropriates the terminating party’s intellectual property rights.
10.3. Effect of Termination. Upon termination of this Agreement: (a) you remain responsible for any Program fees incurred through the date of termination (if applicable), (b) you will immediately cease to identify yourself or hold yourself out as a Program participant or Program “partner,” and (d) Sections 6 and 10-15 as well as any Additional Terms will continue to apply in accordance with their terms.
11. Warranties and Disclaimers.
11.1. Each party warrants to the other party that: (i) such party is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such party; (iv) as of the Effective Date, there is no outstanding litigation, arbitrated matter or other dispute to which such party is a party, which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on such party’s ability to fulfill its obligations under this Agreement; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such party’s entering into this Agreement
11.2. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 9, THE PROGRAM AND THE PROGRAM CONTENT, THIRD-PARTY DATA, AND ANY MATERIALS THAT WE MIGHT OFFER THROUGH THE PROGRAM (COLLECTIVELY, THE “MATERIALS”) ARE PROVIDED “AS-IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE PROGRAM OR MATERIALS, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) THAT THE MATERIALS WILL BE ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (III) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
12. Mutual Indemnification.
12.1. Indemnification by Talkdesk. Talkdesk will pay all Damages and defend Partner from and against all claims brought against Partner by a third party arising out of or relating to any misappropriation or infringement by the Talkdesk Services of any third party’s proprietary or intellectual property right (“Partner Claim”), provided Partner: (a) promptly notifies Talkdesk of all allegations of any such Partner Claim, (b) grants Talkdesk exclusive control over the defense and settlement of any such Partner Claim (provided that Partner may participate with counsel of its own choosing, at its own expense), and (c) gives Talkdesk any information it reasonably requests in connection with the defense of the allegation. Talkdesk shall not be liable for any settlement amounts entered into by Partner without Talkdesk’s prior written approval. If Talkdesk has reason to believe that it would be subject to an injunction or continuing damages based on the Talkdesk Services, then Talkdesk shall be entitled to: (i) modify the Talkdesk Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of such Talkdesk Services in accordance with the appropriate Customer Agreement, or (iii) terminate Customer’s subscriptions for such Talkdesk Services upon 30 days’ written notice and refund Customer any prepaid and unused fees covering the remainder of the Services Term of the terminated subscriptions. The above defense and indemnification obligations do not apply if: (1) the allegation does not state with specificity that the Talkdesk Services are the basis of the Partner Claim; (2) a Partner Claim arises from the use or combination of the Talkdesk Services or any part thereof with software, hardware, data, or processes not provided by Talkdesk, if the Talkdesk Services or use thereof would not infringe without such combination; (3) a Partner Claim arises from Talkdesk Services for which there is no charge; or (4) a Partner Claim arises from a Third-Party Product, Partner’s breach of this Agreement or any Additional Terms, or Customer’s breach of the Customer Agreement. THE FOREGOING IS TALKDESK’S SOLE AND EXCLUSIVE LIABILITY, AND PARTNER’S SOLE AND EXCLUSIVE REMEDY FOR ANY PARTNER CLAIM.
12.2. Indemnification by Partner. Partner will pay all Damages and defend Talkdesk from and against all claims brought against Talkdesk by a third party arising out of or relating to (a) bodily injury or damage to tangible or real property, including death, caused by or arising out of any negligent act or omission of Partner or those for whom Partner is responsible for at law; (b) the performance, provision, use, and/or failure of any product or service provided by Partner; (c) any representations or warranties made by Partner in respect to the Talkdesk Services or any portions thereof beyond those authorized in this Agreement or any Additional Terms; (d) any infringement or misappropriation of any intellectual property or other rights by any Customer Data; or (e) any violation of any law or regulation by Partner or any of its Affiliates or any of its or their officers, directors, employees, contractors, or agents (collectively, “Talkdesk Claims”) subject to the conditions that Talkdesk shall notify Partner promptly of any Talkdesk Claims, permit Partner to control the defense and settlement of such Talkdesk Claims (provided that Talkdesk may participate with counsel of its own choosing, at its own expense), and assist Partner in defending or settling such Talkdesk Claims. Partner shall not be liable for any settlement amounts entered into by Talkdesk without Partner’s prior written approval.
13. Limitation of Liability.
13.1. IN NO EVENT SHALL EITHER PARTY, OR ITS LICENSORS OR SUPPLIERS BY VIRTUE OF THIS AGREEMENT, HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TALKDESK’S TOTAL LIABILITY ARISING OUT OR RELATED TO THIS AGREEMENT AND OR THE SERVICES WILL NOT EXCEED THE GREATER OF U.S. $2,500.00 OR THE AMOUNT OF FEES PAID BY PARTNER TO TALKDESK UNDER THIS AGREEMENT (EXCLUDING THE RESELLER ADDENDUM OR OTHER SIMILAR AGREEMENTS), REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
13.2. THE LIMITATIONS SET FORTH IN THIS SECTION 11 DO NOT APPLY TO ANY VIOLATION OF SECTION 7 (CONFIDENTIALITY), INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OR ITS CONTRACTORS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR TO TALKDESK’S RIGHT TO COLLECT FEES OWED UNDER OR IN CONNECTION WITH ANY PART OF THIS AGREEMENT OR ANY ADDITIONAL TERMS.
13.3. THE PARTIES AGREE THAT THIS SECTION 11 REPRESENTS A REASONABLE ALLOCATION OF RISK.
14. Audit. Partner will maintain complete, clear, and accurate records of its transactions and performance under this Agreement and any Additional Terms. Upon ten (10) days’ advance written notice, Partner will permit Talkdesk or its representative(s) to audit Partner’s records to ensure Partner’s compliance with this Agreement and any Additional Terms. Any such audit will be conducted during normal business hours and in a manner designed to cause minimal impact on Partner’s ordinary business activities. Partner will maintain all records required under this Agreement and any Additional Terms for at least three (3) years following termination of this Agreement.
15.1. Assignment. Partner may not assign its rights or obligations under this Agreement or under any Additional Terms to a third party without the prior written consent of Talkdesk, which shall not be unreasonably withheld; provided, however, that Partner shall have the right to assign, without any consent of Talkdesk, its rights and obligations under this Agreement or under any Additional Terms to any other entity pursuant to a merger, consolidation, reorganization, or sale of substantially all of its assets or equity. Talkdesk may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement and any Additional Terms. Any purported assignment contrary to this Section 13.1 shall be null and void.
15.2. Entire Agreement. This Agreement, including any applicable Additional Terms and all other documents incorporated by reference herein, are the entire agreement between you and Talkdesk regarding the subject matter hereof. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and Talkdesk, whether written or verbal, regarding the subject matter hereof. We will not be bound by, and specifically object to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement or any Additional Terms (whether or not it would materially alter this Agreement or the Additional Terms). If there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control, except that this Agreement will control with respect to any Additional Terms from a third party.
15.3. Pre-Printed Terms. The terms, provisions, or conditions of any purchase order or other business form or written authorization used by either party will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement or any Additional Terms, regardless of any failure of the receiving party to object to those terms, provisions or conditions.
15.4. Modifications. Talkdesk reserves the right to modify this Agreement, from time to time by posting a revised version on the Talkdesk Partner Portal or by otherwise notifying you by e-mail. Partner’s continued participation in the Program after the Agreement has been updated by Talkdesk constitutes your agreement to such changes.
15.5. Dispute Resolution.
15.5.1. Class Action Waiver. To the extent permitted by applicable law, the parties hereby waive their rights to assert any claim as a plaintiff or class member in any purported class action, collective action, private attorney general action, or other representative proceeding.
15.5.2. Choice of Law. This Agreement and any dispute related to this Agreement or any applicable Additional Terms shall be governed by and interpreted in accordance with the laws of the State of California without regard to its conflict of laws provisions. If any litigation is validly instituted in connection with this Agreement, or any Additional Terms, the parties hereby consent to the exclusive personal jurisdiction of the state and federal courts in California and waive any objection as to venue or inconvenient forum.
15.5.3. Jury Trial. The parties hereby waive any right to a jury trial in connection with a dispute related to this Agreement or any Additional Terms.
15.5.4. Attorney’s Fees. If any legal proceeding is instituted to enforce the terms of this Agreement or any Additional Terms, the prevailing party may recover its attorneys’ fees and other associated costs.
15.6. Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement or any Additional Terms for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, pandemic, terrorism, communication failures, strikes or shortages of materials.
15.7. Language. All communications and notices made or given pursuant to this Agreement as well as any Additional Terms must be in the English language. If we provide a translation of the English language version of this Agreement or any applicable Additional Terms, the English language version will control if there is any conflict.
15.8. Notices. All notices, demands or consents required or permitted under this Agreement or any Additional Terms shall be in writing and delivered to the addresses set forth above. Notice will be deemed to have been duly given: (1) upon delivery, if delivered by hand to an officer of the receiving party; (2) when sent to the appropriate confirmed email address, if delivered by email; (3) three business days after being mailed by registered or certified mail, postage prepaid, or on the day tracking information indicates delivery, if applicable; or (4) the next business day, if sent by commercial overnight delivery service, or on the day tracking information indicates delivery, if applicable.
15.9. Waiver. Except as expressly provided for, no waiver shall be deemed to have been made by either party unless expressed in writing and signed by the waiving party. The failure of either party to insist in any one or more instances upon strict performance of any of the terms or provisions of this Agreement or any Additional Terms, or to exercise any option or election herein contained, shall not be construed as a waiver or relinquishment for the future of such terms, provisions, option or election, but the same shall continue and remain in full force and effect, and no waiver by any party of any one or more of its rights or remedies under this Agreement or Additional Terms shall be deemed to be a waiver of any prior or subsequent rights or remedy hereunder or at law.
15.10. Amendment. No modification, amendment or waiver of any provision of this Agreement or any Additional Terms shall be effective unless in writing and signed by the party to be charged.
15.11. Severability. If any provision of this Agreement or any Additional Terms is held by a court of competent jurisdiction to be invalid or unenforceable, such holding shall not affect any other provision hereof, and the Agreement and/or Additional Terms shall be construed as if the invalidated or unenforceable provision had not been contained herein, and in a manner to fulfill the original intent of the parties, insofar as possible.
15.12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.13. Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
15.14. Execution, Digitized Copies, and Counterparts. This Agreement may be executed in two or more identical counterparts (whether by electronic signature, in facsimile, email, in PDF or original, or acknowledgement through a webpage), each of which shall constitute an original as against the party whose signature appears thereon, and all of which together shall constitute one and the same instrument.