Terms of Service.
These Terms of Service (“Terms”) and the Service Level Commitment (SLC) govern the Client’s
(“You” or “Your”) acquisition and use of Drip7 Inc, (“Drip7”) services, including any Free Trial
(as defined herein), as set forth in the applicable Sales Order (collectively, the “Subscription Services”).
1. Scope; Procurement of Subscription Services by Affiliates;
Authorized Users; Usage Rights; Free Trials.
1.1 Scope. These Terms and all executed Sales Orders are collectively referred to as
the “Terms.” All capitalized terms not defined herein, if any, will have the meanings
attributed to them in the applicable Sales Order.
1.2 Procurement and Provisioning of Subscription Services by Affiliates. “Affiliate”
means any legal entity directly or indirectly controlling, controlled by or under common
control of the Client, where control means the ownership of a majority share of the
stock, equity or voting interests of such entity. You may procure Subscription Services
under these Terms for Your own account and on behalf of one or more Client Affiliates.
You are responsible for the acts and omissions of Client Affiliates under any Sales
Order pursuant to which the Client Affiliate receives the benefit of the Subscription
Services, but is not a signatory. Additionally, Client Affiliates may procure Subscription
Services directly under these Terms pursuant to a Sales Order which will set forth the
Client Affiliate’s agreement to abide by the terms and conditions of these Terms and will
be executed by such Client Affiliate and Drip7. Client Affiliates who sign a Sales Order
will be deemed to be the Client hereunder for purposes of the applicable Sales Order
and are solely responsible for their own performance or non-performance thereunder.
1.3 Authorized Users. During the Subscription Term set forth in each Sales Order, Drip7
will make the Subscription Services available to the Client who executed the applicable
Sales Order and its authorized Affiliates, employees, agents or contractors (“Authorized
Users”), for access and use by such Authorized Users solely for Your internal business
purposes in accordance with these Terms and the respective Sales Order(s).
1.4 Usage Rights. The number of Authorized Users assigned to each of the
Subscription Services shall be defined in a Sales Order (each Subscription Service
having a defined “Number of Authorized Users”). Drip7 understands and acknowledges
that the Number of Authorized Users stated in a Sales Order is an estimate and that the
actual number of Authorized Users will fluctuate during a Subscription Term. To that
end, Drip7 and Client agree that within a twenty-one (21) day window of the annual
anniversary date of the Sales Order Effective Date, either: (i) Client will run a report to
count the number of Authorized Users and report the same to Drip7; or (ii) Drip7 will run
a report to count the number of Authorized Users and report the same to Client, for the
previous year. If at any point in time during any successive one-year period of the
Subscription Term, the count of Authorized Users assigned to a Subscription Service
exceeds the Number of Authorized Users stated in the Sales Order for that Subscription
Service, Client agrees to remit the additional fees set forth in the Sales Order in
accordance with the parties’ standard payment terms (the “Subscription Service
Overcharge Fees”).
1.5 Free Trials. Drip7 may, in its sole discretion, make one or more Subscription
Services available to You on a trial basis, free of charge (“Free Trial”). The Free Trial
shall end the earlier of: (i) the end of the trial period; or (ii) the start date of any Sales
Order; or (iii) termination by Drip7 at its sole discretion. Additional trial terms and
conditions may appear on the Subscription Services Free Trial access web page. Any
such additional terms and conditions are incorporated into these Terms by reference
and are legally binding.
ANY DATA YOU ENTER INTO THE SUBSCRIPTION SERVICES AND ANY
CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR YOU,
DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU
PURCHASE A SUBSCRIPTION TO ONE OR MORE SUBSCRIPTION SERVICES, OR
EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. Notwithstanding
Section 6 (Subscription Services Warranties, Limitations, Remedies and Disclaimer),
during the Free Trial the Subscription Services are provided “as-is” without any warranty.
2. Restrictions; Drip7 Use Policies; Removal of Content; Suspension.
2.1 Restrictions. Client will not, and will ensure that its Authorized Users do not, directly
or indirectly: (i) make the Subscription Services available to anyone other than
Authorized Users or use the Subscription Services for the benefit of any unrelated
third-party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or
lease the Subscription Services; (iii) reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code, object code or underlying structure,
ideas or algorithms of the Subscription Services or any software, documentation or
data related to or provided with the Subscription Services; (iv) modify, translate or
create derivative works based on the Subscription Services or remove any proprietary
notices or labels from the Subscription Services; (v) use or access the Subscription
Services to build or support, and/or assist a third-party in building or supporting
products or services competitive to the Subscription Services; (vi) use or access the
Subscription Services for any competitive purpose or (vii) include the Subscription
Services in a service bureau or outsourcing offering.
2.2 Removal of Content. Client may, at its option, provide its own content for one or
more of the Subscription Services. Such content constitutes “Client Data” as defined in
paragraph 3.3 below. If Drip7 receives a request or demand to remove such Client
Data, or if we receive information that any Client Data may violate applicable law or
third-party rights, we will so notify You to promptly remove such content from the
Subscription Services. If You do not take the required action in accordance with the
above, Drip7 will disable the applicable content, or suspend the Subscription Service
containing such content, until the potential violation is resolved.
2.3 Suspension. Drip7 may immediately suspend Your account and access to the
Subscription Services if: (i) You fail to make payment due within 10 business days after
Drip7 has provided You with written notice of such failure; or (ii) You violate Section 2.1
(Restrictions), Section 2.2 (Removal of Content), or Section 9 (Confidential Information).
Any suspension by Drip7 of the Subscription Services under the preceding sentence
will not relieve Client of its payment obligations hereunder.
3. Ownership of Subscription Services: Grant of Right to Use;
Client Data; Statistical Information.
3.1 Ownership of Subscription Services. You acknowledge that the Subscription
Services are offered on an online “right to use” subscription basis. Drip7 retains and
owns all right, title, interest, and all intellectual property rights in and to the Subscription
Services, including any software or documents related to or provided with the
Subscription Services and all intellectual property rights and derivatives, modifications,
refinements or improvements thereto. From time to time, You or Your Authorized Users
may submit to Drip7 comments, questions, enhancement requests, suggestions, ideas,
or other information related to the Subscription Services (“Feedback”). You agree that
Drip7 will own all such Feedback and has all rights to use and incorporate Feedback
into the Subscription Services without restriction or payment to You. No rights are
granted to You other than as expressly set forth herein.
3.2 Grant of Right to Use and to Updates (as defined herein). Drip7 grants to Client a
limited, non-exclusive, non-sublicensable and non-transferable right to use the
Awareness Portal (as defined herein) and the Subscription Services identified in the
applicable Sales Order during the Subscription Term of the applicable Sales Order and
only for the purposes set forth herein and/or in the applicable Sales Order. Client shall
also be entitled to any Updates (as defined herein) to the Subscription Services during
the Subscription Term. Drip7 shall at all times retain ownership of the Awareness Portal
and of all Subscription Services. For purposes of these Terms, the “Awareness Portal”
is Drip7’s online platform used to configure and deliver the Subscription Services to
Client. For purposes of these Terms, “Updates” means any minor enhancements or
updates, when and if available, to the Subscription Services used hereunder during the
Subscription Term, and which Drip7, in its discretion, makes generally available to
companies that have paid the applicable Subscription Services fees. Drip7 has no
obligation to develop Updates.
3.3 Client Data. You own any Client generated content, data, information or material
originated by You or that You provide while using the Subscription Services (“Client
Data”). You will be solely responsible for: (i) the accuracy, quality, content, legality and
use of Client Data, including the means by which Client Data is acquired and used by
You or Your Authorized Users within the Subscription Services; and (ii) all applicable
terms and conditions related to procurement and use of Client Data.
3.4 Statistical Information. Drip7 may monitor Your use of the Subscription Services
and compile anonymous summaries of Client Data, with other data in an aggregate and
anonymous manner, to derive statistical and performance information related to the
provision and operation of the Subscription Services and may make such information
publicly available, provided that such information does not include any data that would
enable the identification of Client or Client Data, or the disclosure of Client Confidential
Information. Drip7 retains all rights, title and interest in and to such statistical and
performance information.
4. Fees; Taxes and Currency; Invoicing and Payment.
4.1 Fees. Client will pay all fees set forth in the Sales Orders for the Subscription
Services (the “Subscription Services Fees”) and any other fees invoiced pursuant to
these Terms. All fees are non-cancelable and non-refundable, except as expressly
specified in the Sales Order. Any fees paid pursuant to a particular or specific Sales
Order will not offset any fees due under any other Sales Order. All fees are exclusive of,
and Client will be responsible for payment of, taxes, levies, duties or similar local, state,
provincial, federal or foreign jurisdiction governmental assessments on the Subscription
Services. If Drip7 has the legal obligation to pay or collect taxes for which You are
responsible. Drip7 will invoice You and You will pay that amount unless You provide
Drip7 with a valid tax exemption certificate authorized by the appropriate taxing
authority. You are not responsible for any taxes based on Drip7’s net income or
property. Except as otherwise specified in a Sales Order, all fees due hereunder will be
paid in U.S. Dollars. If You provide payment card information to Drip7, You authorize
Drip7 to charge such credit card for all Subscription Services listed in the Sales Order.
Unpaid invoices not the subject of a written good faith dispute are subject to a finance
charge of 1.5% per month on any outstanding balance, or the maximum permitted by
law, whichever is lower, plus all reasonable expenses of collection. You are responsible
for providing complete and accurate billing and contact information to Drip7 and
notifying Drip7 of any changes to such information as needed to process Sales Orders.
5. Term; Subscription Term and Renewal; Termination for Cause,
Effect of Termination; Data Portability and Deletion; Survival.
5.1 Term. These Terms will be in effect from the first Sales Order Effective Date or the
date on which Client first enters into a Free Trial, if applicable, until all Sales Orders
issued under these Terms have expired or been terminated (the “Term”). If there are no
Sales Orders in effect, and You elect to use the Subscription Services for a Free Trial
period and do not enter into a Sales Order before the end of the Free Trial period, these
Terms will terminate at the end of the Free Trial period. Notwithstanding the foregoing,
if immediately following the expiration of any final Sales Order, the Parties are
negotiating a renewal of such Sales Order, these Terms will remain in effect for an
additional ten (10) business days to allow the Parties to effect such renewal.
5.2 Subscription Term and Renewal. The term of each Subscription Service shall be as
specified in the applicable Sales Order (the “Original Subscription Term”). The
Subscription Services will automatically renew for 1 year (each a “Subscription Renewal
Term” and collectively with the Original Subscription Term the “Subscription Term”),
unless either Party gives the other notice of non-renewal at least 30 days before the end
of the relevant Subscription Term. The per-unit pricing during any Subscription Renewal
Term will increase by up to 5% above the applicable pricing in the prior Original
Subscription or Subscription Renewal Term. Drip7 will provide You with written notice
of any such price change within sixty (60) days of its effective date. Renewal of
promotional or one-time priced Subscription Services will be at Drip7’s list price in
effect at the time of the applicable renewal. Notwithstanding anything to the contrary,
any renewal in which the volume (Number of Authorized Users) for any Subscription
Services set forth in the Sales Order at issue has changed as of the date on which the
Subscription Term ends will result in re-pricing at renewal.
5.3 Termination for Cause. In the event of a material breach of these Terms, or of any
Sales Order, by either Party, the non-breaching Party will have the right to terminate any
or all Sales Orders and these Terms for cause if such breach has not been cured within
30 days after written notice from the non-breaching Party specifying the breach.
Provided, however, that Drip7 shall have the right to terminate any or all Sales Orders
and these Terms for cause immediately if Client breaches Section 2.1 (Restrictions),
Section 2.2 (Removal of Content) or Section 9 (Confidential Information). Additionally,
either Party may terminate any or all Sales Orders and these Terms if the other Party
becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of creditors and such
petition or proceeding is not resolved to the satisfaction of the Party that is not the
subject of the petition or proceeding within thirty (30) days of receiving notice of same.
5.4 Effect of Termination. If Drip7 terminates a Sales Order for Client’s uncured material
breach: (i) all fees set forth in the terminated Sales Order(s) will be immediately due and
payable; (ii) all rights granted thereunder will immediately terminate; and (iii) if such
terminated Sales Order(s) includes Subscription Service Overcharge Fees and such
fees have been incurred, they shall also be immediately due and payable. Upon
termination of these Terms, all rights to access and use the Subscription Services will
terminate; both Drip7 and You will return and/or destroy all Confidential Information of
the other Party in its possession; and Drip7 will irretrievably delete and destroy Client
Data in accordance with Section 5.5 (Data Portability and Deletion) below. Further, upon
termination of these Terms, Client must immediately uninstall any Drip7 software in its
possession or otherwise on its premises and will provide Drip7 with a certificate signed
by an authorized officer of the Client that it has done so.
5.5 Data Portability and Deletion. Upon at least five (5) business days’ advance written
notice, Drip7 will make all Client Data available to You for export or download, in a
manner mutually agreed upon by both Parties, at any time during the Term. Your Client
Data will also be available to you 30 days after the termination or expiration of these
Terms. After such 30-day period, Drip7 will have no obligation to maintain or provide
Client Data to you and will delete or destroy all copies of the Client Data on Drip7’s
systems, or otherwise in its possession or control, unless legally prohibited from doing
so.
5.6 Survival. The following Sections will survive termination of these Terms: Section 2.1,
Section 3 , Section 4 , Section 6.2 , Section 8 , Section 9 , and Section 12.
6. Subscription Services Warranties, Limitations,
Remedies, and Disclaimer.
6.1 Subscription Services Warranties. Drip7 warrants that, for a period of thirty (30) days
from the date upon which You are granted access to or from the date of delivery of the
Subscription Services, the Subscription Services, under normal use, will: (i) perform
materially in accordance with these Terms, the applicable Subscription Services
documentation and the applicable Sales Order(s) and (ii) be provided in a manner
consistent with generally accepted industry standards. Drip7 shall not warrant the
Subscription Services for: (i) any defects attributable to improper operation, use, misuse
or abuse; (ii) changes in supporting third-party software products that may adversely
affect software functionality; (iii) any imprecisions in regard to the recording of
courseware completion data where completion faults are less than three (3%) of total
completion records. You will notify Drip7 of any warranty deficiencies within 30 days of
the date upon which You are granted access to or from the date of delivery of the
Subscription Services and Your exclusive remedy will be the re-performance of the
deficient Subscription Services. If Drip7 cannot re-perform such deficient Subscription
Services as warranted, You will be entitled to terminate the deficient Subscription
Services and recover a pro-rata portion of the fees paid to Drip7 for such deficient
Subscription Services, and such refund will be Drip7’s entire liability.
6.2 WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE,
AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Drip7 AND ITS THIRD PARTY
PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Drip7 DOES NOT
WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE
SUBSCRIPTION SERVICES OR THE RESULTS CLIENT MAY OBTAIN BY USING THE
SUBSCRIPTION SERVICES. Drip7 DOES NOT WARRANT UNINTERRUPTED OR
ERROR-FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT Drip7 WILL
CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR
UNAUTHORIZED THIRD PARTY ACCESS. Drip7 DISCLAIMS ALL FAILURES, DELAYS,
AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
7. Indemnification.
7.1 Drip7. Drip7 shall, at its expense, defend or settle any claim, action or allegation
brought against Client that the Subscription Services infringe any patent, copyright,
trade secret or other proprietary right of any third party and shall pay any final judgment
awarded or settlements entered into. Client shall give such assistance and information
as Drip7 may reasonably require to settle or oppose such claims. In the event any such
infringement, claim, action, or allegation is brought or threatened Drip7 will, at its sole
option and expense use its best efforts to: (1) Procure for Client the right to continue
use of the Subscription Services or the infringing portion thereof to the extent it is
commercially practicable; (2) Modify, amend or replace the Subscription Services or
infringing part thereof with other software having substantially the same or better
capabilities to the extent it is commercially practicable; or (3) If Drip7 determines that
neither of the foregoing remedies is feasible, then You will be entitled to a pro-rata
refund for prepaid fees for the infringing Subscription Services not performed or utilized
as of the date such determination is made by Drip7. The foregoing obligations shall not
apply to the extent the infringement arises as a result of (i) modifications to the
Subscription Services made by any party other than Drip7 or Drip7’s authorized
representative, (ii) a combination of the Subscription Services with Client’s or third party
products or services, (iii) specifications solely provided by or on behalf of Client; (iv) the
failure by Client to use corrections recommended by Drip7 which Drip7 identifies to
Client as fixing or preventing infringement; (v) intellectual property provided by or on
behalf of Client to Drip7 for use in connection with the Subscription Services; (vi) Client
Data, Client’s or a third party’s technology, software, material, data or business
processes; or (vii) any use of the Subscription Services not in compliance with these
Terms or the applicable Sales Order.
7.2 Client. Client shall, at its expense, defend or settle any claim, action or allegation
brought against Drip7 by a third-party alleging: (i) Client Data infringes the intellectual
property, privacy or other rights of the claimant; or (ii) Your use of the Subscription
Services, other than as authorized in these Terms, violates applicable law or
regulations, or infringes the claimant’s intellectual property rights, and will pay Drip7 for
finally-awarded damages and costs and Client-approved settlements of the claim.
7.3 Procedure. As a condition to the indemnifying Party’s obligations under this Section
7, the Party seeking indemnification must: (i) promptly give written notice of the claim to
the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and
settlement of the claim (provided that the indemnifying Party may not settle any claim
unless it unconditionally releases the indemnified Party of all liability); and (iii) provide
the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. THIS
SECTION STATES THE INDEMNIFIED PARTY’S SOLE REMEDY, TO THE EXCLUSION
OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE
INDEMNIFYING PARTY’S TOTAL LIABILITY, REGARDING THE CLAIMS AND
LIABILITIES ADDRESSED BY THIS SECTION 7.
8. Limitation of Liability.
NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE,
INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR
TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT,
EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND ITS REASONABLE
CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGE; OR (iv) EXCEPT FOR CLIENT PAYMENT OBLIGATIONS,
FOR ANY AMOUNTS THAT EXCEED THE CUMULATIVE FEES INVOICED TO CLIENT
UNDER THE APPLICABLE SALES ORDER IN THE 12 MONTHS PRECEDING THE
DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE
EXTENT PROHIBITED BY LAW.
9. Confidential Information.
Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may,
during the Term and in connection with the Subscription Services, disclose non-public
information relating to the Discloser’s business that is designated as confidential or
reasonably should be understood to be confidential given the nature of the information
and circumstances of disclosure (“Confidential Information”) or trade secrets (as
defined by applicable law) (“Trade Secrets”). The Recipient agrees: (i) to take
reasonable precautions to protect such Confidential Information and any Trade Secrets;
and (ii) not to use or divulge to any third person any such Confidential Information or
Trade Secrets except as allowed pursuant to these Terms and to those of its employees
and contractors who need access for purposes consistent with these Terms and who
are bound to confidentiality terms with Recipient containing protections no less
stringent than those herein. The Discloser agrees that the foregoing will not apply with
respect to Confidential Information after 3 years following the termination of these
Terms or for such longer period of time as any information constituting a Trade Secret
remains a Trade Secret. Further, the Discloser agrees that the foregoing will not apply
to any Confidential Information or Trade Secret the Recipient can document: (a) is or
becomes generally available to the public; (b) was rightfully in its possession or known
by it prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third-party;
or (d) was independently developed without use of any Confidential Information or
Trade Secret of the Discloser. A Party may disclose Confidential Information and/or
Client Data of the other Party if it is compelled by law to do so, provided the receiving
Party gives the Discloser prior notice of such compelled disclosure (to the extent legally
permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to
contest the disclosure.
10. General Terms.
Drip7 may give general notices for Subscription Services applicable to all Clients by
means of a notice on the Awareness Portal (as defined herein) through which the
Subscription Services are accessed. Specific notices applicable to Authorized Users of
the Subscription Services, technical support, system security and other account notices
will be provided by e-mail to Client’s e-mail address on record with Drip7. All legal or
dispute-related notices will be sent by first class mail or express delivery, if to Drip7,
400 South Jefferson Street, Ste 319, Spokane, Washington, 99204, U.S.A, and if to
Client, to Your account representative and address on record with Drip7 or such other
addresses as either Party may designate in writing from time to time. Each Party agrees
to abide by all applicable federal, state, and local laws and regulations in the
performance of these Terms. Unless specifically set forth in the applicable Sales Order:
(i) any action, claim, or dispute between the Parties will be governed by Washington
state law, excluding its conflicts of law provisions, and controlling U.S. federal law; and
(ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal
courts in King County and Seattle, respectively. Except for actions for nonpayment or
breach of either Party’s proprietary rights, no action, regardless of form, arising out of
or relating to these Terms may be brought by either Party more than two (2) years after
the cause of action has accrued. Each Party also hereby waives any right to jury trial in
connection with any action or litigation in any way arising out of or related to these
Terms. Neither Party will be responsible for failure or delay of performance if caused by
an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication
outage that is not caused by the obligated Party; government restrictions (including the
denial or cancellation of any export or other license); or other event outside the
reasonable control of the obligated Party (each a “Force Majeure Event”). Each Party
will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event
continues for more than 60 days, either Party may terminate the Sales Order(s) affected
by the Force Majeure Event upon written notice. These Terms, the Exhibit(s) hereto and
any Sales Order(s) represents the Parties’ entire understanding relating to the
Subscription Services and supersedes any prior or contemporaneous agreements or
understandings regarding the Subscription Services. In the event of a conflict between
these Terms and a contemporaneous or later-dated Sales Order, the terms of the
contemporaneous or later-dated Sales Order will control. No terms, provisions or
conditions of any purchase order, acknowledgement or other business form You may
use in connection with the acquisition of Subscription Services will affect the rights,
duties or obligations of the Parties hereunder, or otherwise modify these Terms,
regardless of any failure of Drip7 to object to such terms, provisions or conditions.
These Terms may be amended only by written agreement signed by the Parties. If any
provision of these Terms is held by a court of competent jurisdiction to be invalid or
unenforceable, then such provision(s) will be construed to reflect the intent of the invalid
or unenforceable provision(s), with all other provisions remaining in full force and effect.
The failure of either Party to enforce any right or provision in these Terms will not
constitute a waiver of such right or provision unless acknowledged and agreed to by
such Party in writing.These Terms and any rights or obligations hereunder may be
assigned, sublicensed or otherwise transferred by the Parties without the prior written
approval of the non-assigning Party (other than to a direct competitor of the
non-assigning party and provided that the assignee agrees in writing to be bound by all
terms and conditions of these Terms), as long as the assigning Party provides the
non-assigning Party with written notice of such assignment at least five (5) business
days in advance of such assignment (so long as it is legally permitted to do so).
Provided, however that either Party may assign or transfer these Terms in connection
with a merger or acquisition of greater than fifty percent (50%) of the assets of the
assigning company (other than to a direct competitor of the non-assigning Party and
provided that the assignee agrees in writing to be bound by all terms and conditions of
these Terms) by providing the non-assigning Party with prompt written notice of
assignment within five (5) business days after the assignment is effective. Any
purported assignment in violation of this section will be void.