GrowthCode Platform Terms - Seller

GrowthCode Platform Terms

Q4 2024 Version

GROWTHCODE PLATFORM TERMS
These GrowthCode Platform Terms (these “Terms”) are entered into between the client set forth on the Order Form which incorporates these Terms by reference (hereinafter “Client”), and GrowthCode, LLC (“Company”) and shall be effective as of the effective date of each such Order Form (“Effective Date”). Each shall be referred to as a “Party” and “Parties'' collectively. In reliance upon the mutual promises, representations and covenants set forth below, the Parties agree as follows:

RECITALS

A. WHEREAS, GrowthCode has developed and provides to its customers, including advertisers, publishers, agencies, technology vendors, and supply-side platforms, access and use of its proprietary Addressability Management Platform which enables companies to utilize one or more of the GrowthCode Applications, including GrowthCode Graph, GrowthCode Router, GrowthCode Data Insights, GrowthCode Curate, and GrowthCode Orchestrate services, to more effectively leverage collected data to improve the value of customer’s inventory (the “Platform”);

B. WHEREAS, GrowthCode also provides additional services to its customers with respect to the development and implementation of strategies and campaigns for advertising on behalf of advertisers and the sale of advertising inventory on behalf of publishers in connection with the use of the Platform, as may be more specifically agreed upon from time to time (collectively, the “Services” and each a “Service”);

C. WHEREAS, Company desires to access and use certain of the GrowthCode Applications, either for itself or for Company Clients, and certain of the Services in connection with its advertising and prospecting initiatives, and GrowthCode is willing to provide such Platform and Services in connection therewith, on the terms and conditions set forth in these Terms.

NOW THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:

DEFINITIONS. When used in these Terms, the following capitalized terms shall have the meanings indicated below:
“Account” means Company’s account through which Company’s Designated Users can access and use those Applications of the Platform as may be agreed in one or more Order Forms.
“Application” means one of the technology applications available to users of the Platform, including, without limitation, GrowthCode Graph, GrowthCode Router, GrowthCode Data Insights, GrowthCode Curate, and GrowthCode Orchestrate, each as further defined herein.
“Applicable Law” means any law, rule, or regulation of any governmental authority having jurisdiction over a Party, including any subsequent amendments thereto or later promulgated laws, rules and/or regulations.
“Company Client” means a client of Company (a) on behalf of whom the Company utilizes the Platform, the Services, and/or the GrowthCode Data, and/or (b) to whom the Company has provided direct access to the Platform, the Services, and/or the GrowthCode Data, subject at all times to the use limitations set forth herein and any applicable Order Form.
“Company Data” means any data supplied by Company and/or a Company Client to GrowthCode, as well as any data obtained by GrowthCode in connection with the provision of the Platform and/or the performance of the Services by GrowthCode on behalf of the Company and/or a Company Client that is related to Company, Company Clients, or their respective affiliates.
“Confidential Information” means any and all information disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, product ideas, personnel, contract and financial information, and these Terms and each Order Form, as well as, specifically in the case of GrowthCode, the Platform, Services, and Technology and any Documentation or other proprietary materials describing the foregoing. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of these Terms, an Order Form, or any other agreement between the Parties by the recipient of the information; (b) is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the receiving Party with respect to such information; (d) is independently developed by the recipient of the information without any breach of these Terms, an Order Form, or any other agreement between the Parties by the recipient of the information, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records; or (e) is approved for release in advance in writing by the disclosing Party, as applicable.
“Data” shall mean all advertising and/or demographic information, including anonymized or hashed personally identifiable information (i.e IP), and any proprietary identifiers related thereto, shared by one Party with the other Party hereto for the purposes set forth in an Order Form, including universal identifiers, contextual segments, and matched data from outside sources.
“Data Output” means any data, reports, analysis or other output developed by or on behalf of Company that are derived from the use of the Platform, the Services, and/or the GrowthCode Data; provided that such Data Output: (a) does not contain any raw, unmodified GrowthCode Data, and (b) is not capable of being reverse engineered, decompiled, disassembled or otherwise modified to obtain the original, unaltered form of the GrowthCode Data.
“Designated Users” means the individual Company users designated by Company to access the Account, each of which will be assigned a unique user login and password.
“Documentation” means all operating manuals, user manuals, training materials, guides, product descriptions, product specifications, technical manuals, support materials, and other information relating to the Platform and/or Services.
“End User” means a human end user who uses a Site, which excludes any robots, spiders, hitbots, scripts, software, hidden links, scrapers, or other mechanical or artificial technologies.
“End User Data” means the Personal Data and non-personally identifiable information about an End User.
“GrowthCode Curate” means the services provided by GrowthCode to create deals, and management including setup, manage, optimize, post-campaign reporting.
“GrowthCode Data Insights” means a comprehensive data platform designed to maximize impression value through advanced audience segmentation and data organization.
“GrowthCode Graph” means the Application that enables publishers and those acting on behalf of publishers to build an identity graph with respect to its End Users for its Sites, enabling such publishers to better match their End User base with advertisers that would be interested in advertising on the publisher’s sites based on deterministic and probabilistic matching of End Users, while protecting the security of publisher data, including as relates to the identity of its End Users. It includes the construction of an identity graph that includes available EID (Electronic ID), contextual signals, and other related users data.
“GrowthCode Router” means any of (i) GrowthCode’s owned or licensed data, including anonymized End User Data, (ii) Public Data, and/or (iii) data acquired or sourced from third-party sources that are provided to Company and/or Company Clients by GrowthCode in connection with the use of the Platform and/or as part of the Services, provided that, unless otherwise specified on an Order Form.This includes the organization and transmission of data signals that might improve the value of a bid request.
“GrowthCode Orchestrate” means the Application that enables companies to organize and integrate their graph with various platforms offering curation services and DMPs and related data marketplaces offering the ability to monetize data.
“Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.
“Order Form” means any insertion order, statement of work, and/or service order that incorporates these Terms by reference and is signed by both Company and GrowthCode, pursuant to which GrowthCode agrees to provide access to one or more of the Platform Applications and/or one or more Services to Company and/or Company Clients.
“Personal Data” means data through which an individual, including an End User, may be identified or contacted, including, without limitation, names, addresses, telephone numbers, email addresses, as well as any other non-public information about an individual that is associated with or linked to any of the foregoing data, as well as the definition applied to such term (or terms similar to such term, such as personally identifiable information, protected health information, and personal information) under Applicable Law (e.g., CCPA and CPRA), but excluding any data in encrypted or hashed form.
“Platform” has the meaning specified in Recital A hereof, including all Technology related thereto.
“Policies” means criteria or specifications, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with GrowthCode’s public image, community standards regarding obscenity or indecency and other editorial or advertising policies as may be specified by a Party, including in an Order Form, or as otherwise provided by GrowthCode upon written notice to Company, from time to time.
“Public Data” means information collected from publicly available sources.
“Service(s)” has the meaning specified in Recital B hereof, as may be more particularly identified in a Order Form, including GrowthCode’s data enhancement, enrichment, analysis, research and other data services, including as set forth in an Order Form.
“Site” means websites, mobile websites, widget implementations, plug-ins, in-app, extensions, toolbars, and other online properties, services, and applications.
“Software” means all software code comprising all or a portion of the Platform and/or Services, including as made available by GrowthCode for use by Company and modified versions, updates and/or upgrades thereto.
“Technology” means any Software or technology incorporated in or made available through the Platform and/or Services by GrowthCode to Company.

2. Term

Term. Each Order Form will commence upon the Effective Date (as set forth therein). These Terms shall be applicable to such Order Forms, including any automatic renewal thereof (as set forth in the Order Form), subject at all times to any survivability clauses set forth herein or therein and continue through the twelfth (12th) month from the Effective Date or until all Order Forms have been fulfilled in accordance with their terms, whichever is shorter (the “Initial Term”), subject at all times to earlier termination in accordance with this Section 8. Unless otherwise stated in an applicable Order Form, each Order Form will automatically renew for additional periods of twelve (12) months on the date it would otherwise expire (each a “Renewal Term”) and together with the Initial Term, the “Term”) unless either Party notifies the other Party in writing of its intent not to renew at least fourteen (14) days prior to the end of the then-current Term.
Effect of Termination. Upon termination or expiration of an Order Form, all license rights granted pursuant to such Order Form and these Terms by incorporation will immediately terminate. Termination for any reason (other than termination for cause by Client pursuant to Section 9(b)) shall not relieve Client of the obligation to pay any fees accrued or payable to GrowthCode (including, if applicable, any committed fees for the remainder of the Subscription Term (as set forth in the Order Form) following the date of termination). Upon termination or expiration of all Order Forms for any reason, (a) both Parties will destroy or return, as requested by the other Party, all Confidential Information of the other Party and copies thereof and the Party deleting such information shall, upon request of the other Party hereto, certify that it has completed the same to the other Party (email will suffice), and (b) each Party will promptly (not to exceed fifteen (15) business days) pay any amounts accruing to the other Party hereto prior to such termination or expiration under the terms of the applicable Order Form and these Terms. This Section 1(b) is not intended to limit any remedies that may be available to a Party for an improper termination or breach of an applicable Order Form or these Terms by the other Party. Nothing in this Section will limit either Party’s right to seek and obtain any other remedies available to such Party under an Order Form or these Terms, at law, or in equity.
Survival. Sections 1.c, 5, 6. through 13, as well as Client’s obligation to pay any fees applicable to the balance of the Client’s then-current Subscription Term as set forth in an Order, will survive any expiration or termination of such Order Form and these Terms for any reason.

3. Services. Subject to the terms and conditions of an Order Form and these Terms, including without limitation the payment of all applicable fees, GrowthCode will provide Client with those Services and/or GrowthCode Data, as may be specified in an Order Form. An Order Form may contain additional terms and conditions specific to the Services and/or GrowthCode Data to be provided thereunder that each Party agrees to comply with and adhere to in their entirety. Each Order Form will provide, if applicable, for (i) the type(s) and amount(s) of Services and GrowthCode Data to be provided, (ii) the fees to be paid by Client to GrowthCode for such Services and/or GrowthCode Data, (iii) any additional Permitted Uses for the GrowthCode Data, Services and/or the GrowthCode API, (iv) the access methods through which the GrowthCode Data and/or Client Data will be transmitted and/or provided (to the extent applicable), and (v) the Subscription Term. Other items that may be included in an Order Form are, without limitation, reporting requirements, any delivery cadence with respect the delivery of the Services and/or GrowthCode Data, and the applicability of any particular Policies. In the event of a conflict between the terms of an Order Form and these Terms, these Terms shall prevail unless otherwise specified in the Order Form by specific reference to this Section 2. For the purposes of these Terms, when processing Data that contains personally identifiable information, the Parties agree to abide by the GrowthCode Data Processing Terms and Conditions, the terms of which are incorporated herein by reference, as may be modified, amended and/or updated by GrowthCode from time to time upon written notice to Client.

4. License. Subject to the terms and conditions contained herein or in an applicable Order Form, each Party grants to the other Party a limited, revocable, non-transferable, non-sublicensable right and license to receive, store, process, and use such Data as is transferred to it by the other Party solely (i) in the United States and EU (ii) solely for the Permitted Uses (as defined in Section 4 below), and (iii) to fulfill the purpose of evaluating the commercial value of the Data pursuant to an Order Form and these Terms. All rights not expressly granted herein are reserved.

5. Data Obligation. Subject to the terms and conditions of an Order Form and these Terms, including payment of applicable fees, GrowthCode hereby grants to Client a limited, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, license, during the applicable Subscription Term specified in an Order Form, to use the GrowthCode Data provided pursuant to an Order Form solely for (i) purposes that are compliant with all Applicable Laws, including without limitation, data protection, privacy and security laws, (ii) assisting Client with the management of its End User outreach and customer marketing and advertising initiatives, and (iii) as otherwise set forth in the Order Form pursuant to which Client licenses the GrowthCode Data (collectively, the “Permitted Uses”). Unless otherwise set forth on an Order Form, at the end of the applicable Subscription Term, provided that GrowthCode Data incorporated into Client’s CRM data shall not be subject to the foregoing deletion requirement.

6. Confidentiality. “Confidential Information” means any information disclosed by either Party to the other Party that is identified as confidential or proprietary, or which should reasonably be understood to be confidential or proprietary given its nature or the circumstances of its disclosure. Confidential Information includes, without limitation, the Data. Confidential Information shall not include information that (a) is or becomes publicly known and generally available through no fault of or breach of an Order Form or these Terms by the receiving Party; (b) was rightfully in the possession of the receiving Party prior to disclosure by disclosing Party as demonstrated by documentary evidence; (c) the receiving Party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing Party; (d) is independently developed by the receiving Party without use of or reliance on the disclosing Party’s Confidential Information as demonstrated by documentary evidence. The receiving Party will not disclose the disclosing Party’s Confidential Information except as necessary for the performance of each applicable Order Form and these Terms and will not disclose the Confidential Information to any third party except those employees, consultants, and agents (“Representatives”) who have a need to know such information for the performance of an Order Form or these Terms and who are bound by a written non-disclosure and non-use agreement consistent with these Terms. The receiving Party will use at least the same degree of care in keeping the Confidential Information confidential as it uses for its own confidential information of a similar nature, but in no event no less than reasonable standard of care. The receiving Party may make disclosures required by law or court order provided the receiving Party notifies the disclosing party of the required disclosure (to the extent lawfully permitted to do so) and assists in obtaining an order protecting the information from public disclosure.

7. Representations and Warranties. In consideration of the Platform and/or Services to be provided pursuant to an Order Form and these Terms, each Party represents and warrants that it:

Shall not use the other Party’s Data except as expressly permitted in such Order Form and these Terms;
Shall not store the other Party’s Data except as needed for processing and provided that the data is permanently removed and deleted from its systems and possession immediately upon completion of the applicable campaign;
Shall not attempt to reverse engineer, decompile, recreate, copy, or otherwise replace the other Party’s Data or provide access to the other Party’s Data to third parties;
Shall not share, resell, sublicense, lease, assign, rent, convey, distribute, disclose or otherwise transfer the other Party’s Data and/or any of the other Party’s rights under an Order Form or these Terms;
Shall make commercially reasonable efforts to ensure the technical and physical security of the other Party’s Data; and
It shall ensure that it maintains privacy policy compliance with U.S. federal and state laws
It shall comply with all Applicable Laws, including without limitation, data protection, privacy and security laws, and, to the extent provided to Client or set for in an Order Form, GrowthCode Policies, when using the Services and GrowthCode Data;
Will not collect, store, transfer, process, display or otherwise use other Party’s Data in a manner inconsistent with all local requirements;
Will not knowingly provide any Data files to the other Party that contain malware, spyware, ransomware, viruses, Trojans, or other malicious code.

B. Company further represents and warrants that its Services (as set forth in an Order Form) will not violate, infringe or misappropriate the copyrights, trade secrets, patents, trademarks, or any other intellectual property or proprietary rights or other rights of any third party and its Services will be free from material errors or other defects and will substantially conform to any specifications or other documentation the Services; and its Services will not violate any applicable laws or regulations.

C. In consideration of the Services contemplated pursuant to an Order Form and these Terms, Client represents and warrants that it:

Shall provide GrowthCode with all reasonable cooperation and technical support necessary and/or appropriate for GrowthCode to provide the Platform, Services and GrowthCode Data in accordance with an Order Form. Client shall not act in any way to circumvent or remove any security measures installed by GrowthCode with respect to the Services and/or GrowthCode Data, including without limitation, any security codes or firewalls. Client shall maintain reasonable security measures and contractual commitments to ensure that any access granted by Client to its employees and Client Representatives complies with all applicable terms of each Order Form and these Terms. Client shall be solely responsible for the compliance of the Client Representatives with the terms of any applicable Order Form and these Terms.
Shall maintain a Privacy Policy that describes to End Users how the Client and third parties engaged by Client, such as GrowthCode, collects, uses, and shares End User Data, including if applicable, disclosure of the use of pixels, cookies, web beacons, and other similar technologies in connection with the collection of End User Data, and that otherwise complies with all Applicable Laws. Each such Privacy Policy shall also authorize all End User Data to be shared with third parties, including GrowthCode, and for such third parties to make use of the End User Data in the manner contemplated by an Order Form and these Terms. To the extent Client provides GrowthCode with any Personal Data, either directly or through any third party, as part of the End User Data, Client represents, warrants and covenants to GrowthCode that it has all necessary legal rights and consents to provide such Personal Data to GrowthCode for use by it for the purposes set forth in an applicable Order Form, as set forth in these Terms, and in compliance with all Applicable Laws. Client shall comply with the applicable Privacy Policy and all Applicable Law and self-regulatory guidelines in connection with the collection, storage, maintenance, processing, transfer, disclosure, renting, sharing, or any other use of any End User Data, including obtaining all necessary consents to collect such End User Data where required by Applicable Law, including through any mutually agreed upon third party consent management platform or framework, and providing necessary opt-out rights in keeping with generally accepted industry standards.
Client represents and warrants that it is and will at all times during the Term be legally permitted to receive, possess, and/or use any GrowthCode Data licensed from GrowthCode pursuant to an Order Form and these Terms, including providing any required notifications to or obtaining any required consents from any individuals with whom Client or its End Users communicate using the GrowthCode Data.

8. Company Obligations:

Data Use. Company 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 (including, without limitation, information concerning Client Data and any data derived from the use thereof), and Company shall have all rights (during and after the Term hereof) to use such information and data solely, (a) to improve and enhance the Services, for internal purposes, and for such other internal development, diagnostic and corrective purposes related to the Services as Company may determine in its sole and absolute discretion on a royalty free basis, (b) to verify, maintain, and, solely in a de-anonymized manner (rendered incapable of re-identification), enhance Company Data, and (c) in aggregate or other de-identified form in connection with its business, notwithstanding anything to the contrary set forth in an Order Form or these Terms.

9. Fees; Payment Terms; Taxes.

Fees. Client will pay all fees applicable to the Services and GrowthCode Data provided by GrowthCode set forth in each Order Form entered into by the Parties. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancelable, and fees paid or payable are non-refundable.
Invoices. Unless otherwise specified in an applicable Order Form, all payments owed pursuant to an Order Form will be paid within thirty (30) days of receipt of an invoice from GrowthCode with respect to same. All payments under an Order Form will be made in U.S. dollars. In the event Client disputes the calculation of any compensation owed to GrowthCode pursuant to an Order Form, it must provide written notice of such dispute on or before the date a disputed amount was otherwise due and owing to GrowthCode. Upon timely submission of a notice of dispute pursuant to this Section 6.b., the Parties will work in good faith to resolve this dispute for a period of thirty (30) days and if, at the end of such thirty (30) day period, no resolution has been reached, the applicable Order Form may be immediately terminated by GrowthCode and the Parties may pursue their respective rights under applicable law. In the event a notice of dispute is not timely received, Client shall be deemed to have waived any further rights to challenge or dispute such compensation calculation.
Late Payment; Collections. If Client fails to pay an invoice by the due date, the Services and the provision of GrowthCode Data may be suspended until payment is made. Upon payment receipt, GrowthCode will provide all the GrowthCode Data for the dates of any interruption of service. Client will reimburse any costs or expenses (including, but not limited to, collection agency fees, reasonable attorneys’ fees and court costs) incurred by GrowthCode to collect any amount that is not paid when due upon receipt of an invoice therefore.

10. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.

11. Limitation of Liability. EXCEPT FOR A BREACH BY A PARTY HERETO OF SUCH PARTY’S CONFIDENTIALITY, DATA SECURITY AND INDEMNIFICATION OBLIGATIONS, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. EXCEPT FOR A BREACH BY A PARTY OF SUCH PARTY’S CONFIDENTIALITY, DATA SECURITY AND INDEMNIFICATION OBLIGATIONS, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL A PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO AN ORDER FORM AND/OR THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) THE FEES PAID OR OWED BY CLIENT TO COMPANY UNDER THE APPLICABLE ORDER FORM(S) FOR WHICH THERE HAS BEEN A BREACH DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY OR (B) FIVE THOUSAND DOLLARS ($5,000). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

12. Indemnification. Company shall defend, indemnify, hold Client, its parent companies, subsidiaries, affiliates, manager, officers, directors, employees, agents and representatives from and against any and all third party claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to, any actual or alleged breach of any of Company’s representations, warranties or covenants in each applicable Order Form and these Terms or Company’s gross negligence or intentional misconduct. Client shall defend, indemnify, hold Company, its parent companies, subsidiaries, affiliates, , manager, officers, directors, employees, agents and representatives from and against any and all third party claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to, any actual or alleged breach of any of Client’s representations, warranties or covenants set forth in an Order Form and/or these Terms or Client’s gross negligence or intentional misconduct. An indemnitee under this Section 11 (an “Indemnitee”) must (i) promptly notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a claim for indemnification under an Order Form and/or these Terms (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) give the Indemnitor full control and sole authority over the defense and settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval will not be unreasonably withheld or delayed. An Indemnitee may, at its sole cost and expense, undertake and control the defense of any indemnifiable claims arising out of an applicable Order Form or these Terms.

13. General

Notice. Any notice, report, approval or consent required or permitted pursuant to an Order Form and/or these Terms shall be in writing and will be deemed to have been duly given if delivered personally, mailed by first-class, registered or certified U.S. mail, postage prepaid, return receipt requested or via overnight delivery service to the respective addresses of the Parties as set forth below (or such other address as a Party may designate) or sent via confirmed facsimile or email, provided that in all cases of email notification, the date of the email shall control provided that a physical copy of such notice is promptly sent to recipient’s address as set forth below. In the case of notice to Company such physical notice shall be sent to the attention of the CFO.
Independent Contractors. The Parties shall not be deemed to be partners, joint ventures, employers, employees or each other's agents, and no Party shall have the right to act on behalf of any other except as expressly agreed in writing.
Counterparts. Each Order Form may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Each Order Form and written amendments hereto, may be executed by facsimile and/or other digital signature, such as AdobeSign.
No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of an Order Form or these Terms or to exercise any right under an Order Form or these Terms will not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
Amendment. Any waivers or amendments of the terms of an Order Form and/or these Terms shall be effective only if made in writing and signed by a representative of the respective Parties authorized to bind the parties.
Assignment. Client may not assign an Order Form and/or these Terms or assign or delegate its rights or obligations under an Order Form and/or these Terms without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed. Any assignment or attempted assignment by either Party in violation of this Section 12.f. shall be null and void. Company shall have the right to assign an Order Form and these Terms to an affiliate or any successor to its business or assets to which such Order Form and these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
Force Majeure. Except for any payment obligations, neither Party shall be liable pursuant to an Order Form and these Terms by reason of any failure or delay in the performance of its obligations of such Order Form and/or these Terms for any cause which is beyond the reasonable control of such Party.
Applicable Law; Venue. Each Order Form and these Terms shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of New York and the United States without regard to conflict of law’s provisions thereof and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Order Form or these Terms. If any legal action is brought by a Party to enforce an Order Form or these Terms, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
Entire Agreement. Each Order Form entered into hereunder along with these Terms sets forth the final and entire agreement and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein. Neither Party will be bound by, and each Party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of an applicable Order Form and these Terms (whether or not it would materially alter such Order Form and/or these Terms) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing. If any provision of an Order Form or these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that such Order Form and these Terms shall otherwise remain in full force and effect and enforceable. To the extent that there are any contradictions or inconsistencies between this Agreement and any Exhibit, such Exhibit shall take precedence and govern.