Terms of Service

Last updated: 04/11/2022

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This Subscription Agreement (“Agreement”) is entered into by and between Inflection.io, Inc. (hereinafter referred to as “Provider”) and the “Customer” identified in the written or electronic order form referencing (by electronic link, attachment or otherwise) this Agreement (in each case, the “Order Form”), as of the Subscription Start Date set forth in the Order Form (the “Effective Date”). This Agreement includes and incorporates the Order Form. Provider and Customer are each individually referred to as a “Party” and collectively as the “Parties”.

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BACKGROUND

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Provider offers a web-based software-as-a-service platform for digital marketing and related services (the “Service”), including its technology components and related documentation.
Customer desire to purchase access to the Service on a subscription basis, according to the terms of this Agreement and one or more Order Forms.

By entering into an Order Form, Provider and Customer signify their intent to be contractually bound by the terms and conditions set forth below. Capitalized terms, where not defined elsewhere in this Agreement, have the meaning set forth in Section 10.

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1. ACCESS TO AND USE OF THE SERVICE.

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1.1. Limited-Purpose Access Grant. Subject to Customer’s and its Authorized Users’ continuing compliance with this Agreement and payment of the applicable fees, Provider hereby grants to Customer, non-exclusive, non-transferable right for its Customer and its Authorized Users to access the features and functionality of the Service during the Subscription Term. This access grant may not be sublicensed, in whole or in part. The scope of Customer’s use of the Service is subject to the terms and conditions of this Agreement, including any usage terms, parameters or limitations set forth in the applicable Customer Order For, such as limitations on Authorized Users, transactions and data volume (“Usage Limits”).

1.2. Access Protocols. Provider shall provide to Customer the necessary credentials and network links or connections to allow Customer’s Authorized Users to access the Service. Customer shall be responsible for all acts and omissions of Authorized Users, including any act or omission by an Authorized User which constitutes a breach of this Agreement. Customer shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement that are applicable their use of the Service and shall cause them to comply with such provisions. Customer will not: (i) share its login credentials for the Service with unauthorized third parties; (ii) allow such login credentials to be simultaneously used by two or more Authorized Users; or (iii) utilize group email addresses in the creation of credentials. Customer shall notify Provider immediately of any known or suspected unauthorized use or breach of its credentials by emailing security@inflection.io, and will cooperate with Provider using best efforts to stop and remediate said breach.

1.3. Account Administration. Customer shall designate one Authorized User to act as an administrator who will serve as Customer’s principal point of contract with Provider.

1.4. Information Security. Provider will maintain and enforce reasonable safety and physical security procedures with respect to the Services and protection of Customer Data. Among other things, the security procedures are designed to provide technical and organizational safeguards to minimize accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of Customer Data.

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2. CUSTOMER RESPONSIBILITIES.

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2.1. Access and Use of the Software or the Service. As between Customer and Provider, Customer is solely responsible for compliance with Applicable Laws relevant to its Authorized Users accessing or using the Service in any jurisdiction where its Authorized Users access or use the Service. Without limitation to the foregoing, Customer shall: (i) be responsible for the accuracy, quality, suitability and legality of the Customer Data and the means by which the Customer Data was acquired; (ii) comply at all times with Customer’s applicable published privacy policy; and (iii) use the Services only in compliance with the Acceptable Use Policy set forth in Schedule 1 (“AUP”).

2.2. Customer Data. Provider has no independent obligation to preview, verify, flag, modify, filter or remove any Customer Data from the Software or the Service. However, Provider reserves the right to remove Customer Data that does not comply with the terms and conditions of this Agreement or Applicable Law, either at its own initiative or in response to the request or complaint of a third party.

2.3. Suspension. Provider may immediately suspend Customer’s access to the Service if (a) Customer fails to pay an undisputed invoice within 15 business days after Provider has provided Customer with a written reminder notice of late payment; or (b) Customer violates the AUP or Section 2.1 (Access and Use of the Software or the Service). Any suspension by Provider of the Service under the preceding sentence will not relieve Customer of its payment obligations hereunder. Provider will promptly lift the suspension upon Customer’s payment or remedy of the triggering violation, as applicable.

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3. SUPPORT SERVICES.

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3.1. Technical Support. At no additional charge and during Provider’s normal business hours (9:00 a.m. to 5:00 p.m. PST, Monday through Friday, excluding Provider-designated holidays), Provider will provide reasonable technical support for the Software or the Service in response to Customer requests sent via email to support@inflection.io. Customer is responsible for providing technical support to its Authorized Users, but if escalation is required, Customer personnel may request technical support from Provider, whose personnel will work in collaboration with Customer personnel to resolve the issue. Provider may also offer upgraded support services for an additional fee.

3.2. Updates. During the applicable Subscription Term, Customer will be given access to any updates, improvements, enhancements, modifications and/or changes to the Service offered or provided by Provider to its customers generally at no additional charge, including, as applicable, bug fixes and feature enhancements. All such updates will be deemed included within the definition of the “Service.” Customer acknowledges that Provider will decide which features to implement or not implement and the priority and release schedule timing for them. Provider may in the future offer optional value-added functions, features or other capabilities for a separate fee.

3.3. Scheduled Maintenance. Provider will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) scheduled maintenance; or (b) any unavailability caused by circumstances beyond Provider’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, Internet service provider failures or delays, or denial of service attacks. Provider will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and will provide at least 24 hours’ advance notice for non-emergency maintenance. Provider will not be responsible for any damages or costs incurred by Customer due to unavailability of the Software or the Service during scheduled or emergency maintenance.

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4. FEES.

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4.1. Fees. Customer will pay all undisputed fees set forth in the Order Form and any other fees invoiced pursuant to this Agreement. All fees are noncancelable and nonrefundable, except as expressly specified in the Agreement. All fees due hereunder will be paid in U.S. dollars.

4.2. Usage Limits. Customer will, at all times, ensure that its use of the Services does not exceed the Usage Limits. If Customer exceeds its Usage Limits, Provider will notify Customer and (unless otherwise mutually agreed) Customer will automatically be billed for overage fees based on its actual usage, at the rate set forth in the Order Form or, if not stated in the Order Form, at the rate set forth in Provider’s published price list. Provider will submit an additional invoice to Customer, and Customer agrees to pay such invoice, in an amount equal to the difference between the new and former usage tier, adjusted on a pro-rata basis for the remainder of the applicable subscription term.

4.3. Taxes and Currency. Customer will pay all taxes and duties (including value-added tax, turnover tax, gross receipts tax, sales or use tax and customs duties) taxes applicable to the receipt of the Services or payments made under this Agreement, except for any taxes based on Provider’s net income or property.

4.4. General. All amounts are due and payable net 30 days from receipt of invoice, or as otherwise specified in the Order Form. Customer agrees to accept invoices electronically (including email). Customer must pay the undisputed portions of Provider’s invoice as required by this Agreement and will reimburse Provider’s reasonable collection costs. Unpaid invoices not the subject of a written, good faith dispute are subject to interest of 1.0% per month or the maximum rate permitted by applicable law. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.

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5. PROPRIETARY RIGHTS.

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5.1. Services and Provider Content. The Software, Service, and Provider Content, and all Intellectual Property Rights in and to them, are and shall remain owned by Provider (and its licensors, as applicable) and are protected by copyright, trademark, patent, trade secret and other laws and treaties. Provider hereby grants Customer and its Authorized Users a limited, personable, revocable, non-sublicensable and non-transferable license to reproduce and display Provider Content solely in connection with their authorized use of the Service.

5.2. Customer Data. As between Provider and Customer, Customer will own all Customer Data. Customer hereby grants to Provider a non-exclusive, worldwide, royalty-free right and license to access, use, store, copy, process, transmit, index, deliver and display Customer Data to the extent necessary for Provider to provide the Services and otherwise comply with its obligations and exercise its rights under this Agreement, including to prevent or address technical problems, or in connection with support services or other Customer requests.

5.3. System Data. The parties acknowledge and agree that Provider may aggregate, collect and analyze System Data and shall be free (during and after the term hereof) to: (a) use such data to develop, modify, improve, support, customize and operate the Service and other Provider offerings; and (b) publish, display and distribute such data, solely in an aggregated and anonymized format that does not identify Customer or any individual. “System Data” means data and other information regarding use, performance, availability, integrity and security of the Service.

5.4. Marketing. Customer grants Provider permissions for public identification of Customer as a user of the Service.

5.5. Feedback. If Provider receives from Customer or any of its Authorized Users or customers any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other Provider products, offerings or services (“Feedback”), Provider may use, disclose and exploit such Feedback without restriction, including to improve the Service and to develop, market, offer, sell and provide other products and services.

5.6. No Implied Licenses by Provider. Customer acknowledges that there are no licenses granted by Provider by implication under this Agreement. Provider reserves all rights that are not expressly granted.

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6. CONFIDENTIALITY.

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6.1. Obligations. The Parties acknowledge that during the performance of this Agreement, each Party may have access to certain of the other Party’s Confidential Information. Each Party agrees: (i) that all items of Confidential Information are proprietary to the disclosing Party and will remain its sole property; (ii) to use Confidential Information only for the purposes for which it was disclosed; (iii) not to reproduce Confidential Information except as reasonably necessary for its authorized use; (iv) to hold in confidence and protect such Confidential Information from dissemination as if it were its own, using at least reasonable care; and (v) to return or destroy all Confidential Information that is in its possession upon termination or expiration of this Agreement (except as provided in Section 10.4).

6.2. Exceptions; Other. Notwithstanding the foregoing, the provisions of this Section 6 will not apply to any particular Confidential Information that (a) is publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the recipient; (b) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (c) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; or (d) is independently developed by the recipient. Notwithstanding the foregoing, (i) each Party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Laws; and (ii) the existence of this Agreement is not confidential, but the pricing and other terms are confidential. Nothing in this Section 6 shall be construed as a grant or assignment of any right or license in the disclosing Party’s Confidential Information. The receiving Party acknowledges that the disclosing Party has the right to take all reasonable steps to protect the disclosing Party’s Confidential Information, including by seeking injunctive relief and/or any other remedies that may be available at law or in equity, all of which remedies shall be cumulative and in addition to any rights and remedies available. Any requirements for a bond in connection with any such injunctive or other equitable relief are hereby waived by both Parties.

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7. WARRANTY AND DISCLAIMER.

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7.1. Mutual Representations. Each Party represents to the other (i) that the execution and performance of its obligations under this Agreement will not conflict with or violate any provision of Applicable Law; (ii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

7.2. Limited Service Warranty. Provider warrants that the Service, under normal use as permitted by this Agreement, will perform substantially in accordance with generally accepted industry standards. Customer will notify Provider of any breach of the foregoing warranty within thirty (30) days of the date on which the condition giving rise to the claim first appeared, and Customer's exclusive remedy will be the re-performance of the deficient portion of the Service as warranted. If Provider cannot re-perform the Service as warranted, Customer may terminate its subscription under Section 10.2 and recover any pre-paid fees for the unused portion of the terminated Subscription Term. Such refund will be Provider’s entire liability for a breach of warranty under this Section 7.2.

7.3. DISCLAIMERS.

Customer represents that it is entering this Agreement without relying upon any provider representation or warranty not expressly stated in this Agreement. To the maximum extent permitted by Applicable Law, Provider disclaims any and all promises, representations and warranties, express, implied or statutory, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, data accuracy, data security, and all warranties that may otherwise be implied. No warranties are made on the basis of trade usage, course of trade, or course of dealing or performance.

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8. INDEMNIFICATION.

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8.1. Indemnification of Customer by Provider. Provider agrees to defend, indemnify and hold harmless Customer from and against all third-party claims, actions, complaints or proceedings (collectively, “Claims” and individually, a “Claim”), to the extent such Claim alleges that the Service infringes or misappropriates a third-party Intellectual Property Right; and, in each case, associated Losses. Provider will have no liability for any Claim that arises from any: (x) use of the Service in violation of this Agreement; (y) modification of the Service by Customer (or any third party acting on Customer’s behalf); or (z) third-party products, services, hardware, software, or other materials, or combination of these with the Service, if the Service would not be infringing without this combination. In the event a Claim subject to this Section 8.1 necessitates cessation of the Service, Provider may terminate Customer’s subscription and refund to Customer any pre-paid fees for the unused portion of the terminated Subscription Term.

8.2. Indemnification of Provider by Customer. Except for any Claims in respect of which Provider is obligated to indemnify Customer under Section 8.1, Customer agrees to defend, indemnify and hold harmless Provider from and against all Claims that may, at any time, arise out of or relate to Customer Data or Customer’s or an Authorized User’s use of the Service other than in accordance with this Agreement, and, in each case, associated Losses.

8.3. Indemnification Procedures. If any third party makes a Claim covered by Section 8.1 or 8.2 against an indemnitee (a “Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying Party, including a brief description of the amount and basis for the claim, if known. Upon receiving such notice, the indemnifying Party shall be obligated to defend the Covered Party against the Claim, and shall be entitled to assume control of the defense and settlement of the Claim. The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control. The indemnifying Party shall keep the Covered Party apprised as to the status of the Claim. Neither the indemnifying party nor any Covered Party shall be liable for any settlement of a Claim made without its consent. Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the other Party hereunder.

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9. LIMITATION OF LIABILITY

Except as expressly provided in this Section 9, neither Party shall have any liability under or in connection with this Agreement for any indirect, incidental, consequential, special, exemplary or punitive damages, nor any liability for lost profits, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability (including negligence), or strict liability), even if the liable Party knew or should have known that those kinds of damages were possible. Each Party’s maximum cumulative liability under or in connection with this Agreement shall never exceed the injured Party’s actual direct damages, capped at the total amount paid or payable under this Agreement by Customer to Provider during the 12-month period preceding the occurrence of the event giving rise to the liability. The foregoing limitations of liability shall not be applicable (a) to a Party’s indemnification obligations under Section 8; (b) to any damages that the liable Party is not permitted to disclaim (or, as applicable, limit) under Applicable Law or (c) as a result of any breach of Section 6 (Confidentiality). Parties acknowledge that this Section 9 is an essential part of this Agreement, absent which the economic terms and other provisions of this Agreement would be substantially different.

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10. TERM AND TERMINATION.

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10.1. Term. This term of this Agreement commences on the Effective Date set forth and continues until terminated in accordance with this Agreement. Unless otherwise provided in an Order Form, the duration of each subscription described therein (the “Subscription Term”) will be one (1) year and will automatically renew unless either Party provides the other Party a notice of non-renewal at least thirty (30) days prior to the expiration of such subscription.

10.2. Termination. Either Party may terminate this Agreement upon notice to the other Party if there are no active Order Forms or subscriptions in place. Either Customer or Provider may terminate this Agreement or any or all Order Forms for cause (a) upon 30 days’ written notice to the other Party if the other Party has committed a material breach of this Agreement and the breach remains uncured at the expiration of such period, or (b) 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, that is not dismissed within 60 days.

10.3. Effect of Termination on Fees. If this Agreement is terminated by Customer pursuant to Section 10.2, any pre-paid fees for the unused portion of the terminated subscription term will be refunded to Customer. In all other cases, all fees paid or payable for the terminated Subscription Term are non-cancellable and non-refundable, and any unpaid fees for the remainder of the terminated Subscription Term will become immediately due and payable.

10.4. Other Effects of Termination. Effective immediately upon expiration or termination of this Agreement, (i) all rights granted under this Agreement will become void, (ii) Customer shall cease all use of the Service, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise Intellectual Property Rights of the other Party that were licensed under this Agreement (if any). Customer must download all Customer Data from the Service user interface prior to expiration or termination of this Agreement or a Service subscription. Within sixty (60) days of the expiration or termination of this Agreement or a Service subscription, Provider will delete all Customer Data in its control except where legally prohibited or pursuant to Provider’s published data retention policies.

10.5. Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement for any reason.

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11. DEFINITIONS.

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“Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a party or its personnel in relation to their activities under or pursuant to this Agreement, including without limitation the CAN-SPAM Act of 2003 and any other applicable domestic or foreign laws regarding digital marketing.

“Authorized User(s)” means Customer users who receive a user ID or other access credentials enabling them to access the Service.

“Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the strategy, business or operations of either Party or a third party that has been identified as confidential or that, by the nature of the information or the circumstances surrounding its disclosure, ought reasonably to be treated as confidential.

“Customer Data” means any data, media, information or material originated by Customer or that Customer provides in the course of using the Services, such as email or other contact information and message content.

“Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by Applicable Law.

“Losses” means in connection with a Claim that is subject to defense and indemnification by a Party under this Agreement, all reasonable attorneys’ fees, reasonable costs of litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.

“Order Form” means an order form issued by Provider and executed by Customer and Provider under this Agreement setting forth the necessary information relating to the Service to be provided to Customer and the fees payable to Provider.

“Provider Data” means data, media, information or material owned, originated or controlled by Provider or made accessible to Customer or its Authorized Users via the Service, such as message templates or other digital marketing tools.

“Software” means the underlying software that provides the functionality of the Service.

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12. GENERAL.
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12.1. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties shall be governed by the internal laws of the State of Washington without regard to principles of conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of King County, Washington, and the parties hereby consent to the personal jurisdiction of these courts. In any action, suit or proceeding to enforce or construe the provisions of this Agreement, the prevailing Party will be entitled to recover its reasonable attorney’s fees, court costs and other expenses incurred in connection with such proceeding in addition to any other relief that it may receive.

12.2. Force Majeure. Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.

12.3. Assignment. Either party may assign this Agreement in its entirety to a surviving entity under a merger or acquisition, upon written notice to the other Party, provided that an assignment by Customer will not expand the scope of any Service subscription and provided that the assignee agrees in writing, for the benefit of other Party, to assume all of the assignor’s obligations under this Agreement. Except as provided in this Section 11.3 (Assignment), neither Party may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior, written consent of the other Party. Any attempted assignment in derogation of this Section 11.3 (Assignment) will be null and void.

12.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.5. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, electronic mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Provider and Customer shall be their respective addresses specified in the applicable Order Form. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the mail and (ii) in the case of overnight courier, electronic mail or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.

12.6. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.

12.7. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.

12.8. Entire Agreement; Amendments. This Agreement (including Schedule 1 and Order Forms entered under it) constitutes the entire agreement between Provider and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing executed by the Parties’ duly authorized representatives.