Accessicart Subscription Terms of Service
Last updated: Oct 25, 2023
THESE TERMS OF SERVICE (THE “TERMS“), TOGETHER WITH ONE OR MORE STATEMENTS OF WORK, ORDER FORMS, OR SIMILAR DOCUMENTS (EACH AN “ORDER FORM,” TOGETHER WITH THESE TERMS, THE “AGREEMENT”) GOVERNS YOUR ACCESS TO AND USE OF OUR SUBSCRIPTION SERVICES.
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with Customer. “Control,” for purposes of this definition, means: (a) direct or indirect ownership or control of more than 50% of the voting interests of the subject entity; or (b) the ability of an entity to control the decision-making of the other entity through an agreement or other arrangement.
“Authorized User” means Customer’s employees, consultants, contractors, agents, service providers, or third parties with which Customer does business and has authorized access to or use of the Subscription Services under the Agreement.
“Customer,” “you,” or “your” means the individual, company, business, organization, or other legal entity identified in an Order Form.
“Customer Content” means any technical or other data, information, and content related to your websites, mobile applications, or other similar materials and systems submitted or otherwise transmitted by, or on behalf of, you through a Subscription Service or Developer Tool.
“Developer Tool” means the dashboard, application programming interface, software development kit, or a similar set of development tools offered by or through us and ordered by you through an Order Form for a specified term.
“Documentation” means any related technical or non-technical reports, accessibility compliance reports, best practices or standards, instructions, or other documents or materials provided or made available by Accessicart to Customer, including such materials that describe the functionality, components, features, or requirements of a Subscription Service, a Developer Tool, or our Services.
“Feedback” means any feedback, requests, recommendations, ideas, or suggestions regarding our Services that you or your Authorized Users provide to us. For such Feedback, you agree that: (a) confidentiality obligations do not apply to such Feedback, (b) we may or may not, at our sole discretion, use or disclose your Feedback for any purpose and in any manner, (c) we own any and all intellectual property in such Feedback, and (d) to the extent required by applicable law, you grant to us an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such Feedback for any purpose without any limitation, obligation, or compensation to you.
“Harmful Code” means code, files, scripts, agents, or programs intended to do harm, including, for example: time bombs, Trojan horses, viruses, or worms.
“Intellectual Property Right” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Non-Accessicart Product” means any applications, products, software, websites, intranets, or other solutions not owned by Accessicart that link to or interface with our Services, including, any applications, intranets, products, software, websites, or other solutions provided by Customer.
“Permitted Use” means Customer or its Authorized Users’ access, installation, and use of our Subscription Services for the analyzing and remediating Non-Accessicart Products utilized by Customer for its internal business purposes. For clarity, the Permitted Use does not include any uses that are restricted or otherwise not permitted under the Agreement.
“Professional Services” mean professional services offered by or through Accessicart and ordered by you and separately invoiced, including website or mobile application testing, audit, or analysis; website or mobile application design, development, remediation or programming; and support and maintenance services related to the above, and consulting pertaining to best practices and compliance regarding online accessibility.
“Subscription Services” means the Developer Tools, Documentation, Professional Services, and any other products, materials, or services offered by or through Accessicart, and ordered by you under an Order Form.
“Usage Data” means data and information related to your or your Authorized Users’ use of our Services that is used by us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Web Content Accessibility Guidelines” or “WCAG” means the accessibility requirements for web content, including but not limited to: text, images, audio-visual materials, and the code used for structure, style, and interactions put forth by the World Web Consortium (WC3). For more information, you may visit: https://www.w3.org/WAI/standards-guidelines/wcag.
1.1. Access and Use. During the Term, we will provide you and your Authorized Users with a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the Subscription Services, including Developer Tools, Documentation, and other applicable technology for the Permitted Use.
1.2. Professional Services. Professional Services will be provided: (a) in English; (b) remotely; and (c) using personnel in a number and possessing qualifications that we deem to be sufficient to perform the Professional Services; provided, that, all Professional Services will be performed in a workmanlike and professional manner.
1.3. Non-Accessicart Products. Non-Accessicart Products for Customer’s use may be made available to you with the understanding that Customer’s acquisition and use of a Non- Accessicart Products, and any exchange of data between Customer and any third-party provider, is solely between Customer and the Non-Accessicart Product provider.
1.4. Updates; Changes.
1.4.1. Updates. Unless provided in an Order Form, we are not required to provide any revision, new release, update, improvement, modification, or additional functionality enhancement of the Subscription Services (each an “Update”). You acknowledge and agree the Subscription Services provided are neither contingent upon the delivery of any Update, nor ordered in reliance on any oral or written public comments made by us regarding any such Update.
1.4.2. Changes. We may modify our Services to: (a) improve or enhance: (i) their quality or delivery; (ii) their competitive strength or market; or (iii) their performance or cost efficiency; or (b) comply with applicable law (each a “Change”). Any Change will apply to all customers and their respective users of the Subscription Services subject to the Change. Please be aware that we may deprecate or degrade such Subscription Services (tools, products, and documentation) at our discretion and at our option (with or without notice to you); however, we will make all reasonable efforts to transition you to the replacement services or a comparable product, which may require you to execute a new Order Form.
1.5. Security. We maintain commercially appropriate administrative, physical, and technical safeguards in relation to our Subscription Services. Considering the nature, scope, and purpose of our Subscription Services and the manner of, and any associated risks to, the processing of any Customer Content using the Subscription Services, you acknowledge and agree that our security measures constitute an appropriate level of security.
1.6. Support Services. In the event you require support for accessing or using the Subscription Services you can email: [email protected].
1.7. Suspension. You or your Authorized Users’ access to the Subscription Services may be subject to suspension (“Suspension”) if we reasonably determine: (a) you are delinquent in your payment of Fees; (b) you or any Authorized User has violated, are violating, or intend to violate any of the provisions contained in Section 2 (Customer Responsibilities; Restrictions) of this Agreement; (c) you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) the continued provision of the Subscription Services to you or any Authorized User is prohibited by applicable law. Subscriptions suspended for delinquent payment may be reinstated within 10 days to resume access. After ten (10) days, all Customer Content will be deleted from the AccessiCart system. We will use commercially reasonable efforts to: (a) if possible, provide you with notice and an opportunity to cure a violation or threat prior to any such Suspension; (b) where practicable, limit the Suspension based on the circumstances leading to the Suspension (e.g., to certain Authorized Users), and (c) provide updates regarding resumption of access following any Suspension and resume such access as soon as reasonably possible after the event giving rise to the Suspension is cured.
- RESTRICTIONS; CUSTOMER RESPONSIBILITIES.
2.1. Restrictions. You will not, and will not permit any third-party to: (a) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, in whole or in part, of the Subscription Services; (b) copy, modify, or create derivative works of the Subscription Services; (c) lease, sublicense, sell, assign, distribute, or otherwise make the Subscription Services available to any third-party; (d) bypass or breach any security device or protection utilized by the Subscription Services; (e) input, upload, or transmit any Harmful Code through, or using, the Subscription Services; (f) disrupt, disable, interfere with, or otherwise impede or harm the Subscription Services or our provision of the Subscription Services to any third-party; (g) access or use the Subscription Services in a manner that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; or (h) otherwise access or use the Subscription Services beyond the Permitted Purpose.
2.2. Responsibilities. You are responsible for: (a) acts and omissions of any third-party that accesses any portion of the Subscription Services through, or under rights granted to, you; (b) your Authorized Users’ compliance with the Agreement; (c) issuing and securing of all access credentials used by you or your Authorized Users to access the Subscription Services; (d) providing to us all cooperation and assistance as may be reasonably requested by us to enable us to exercise our rights and perform our obligations under the Agreement; and (e) ensuring that all Non-Accessicart Products used to access or use the Subscription Services by you and your Authorized Users is free of Harmful Code and utilize appropriate security measures to mitigate unauthorized access or use of the Subscription Services.
- TERM, TERMINATION, & SUSPENSION.
3.1. Term. The Agreement will begin on the date that Customer executes an Order Form referencing this Agreement and payment is received (the “Effective Date”) and continue for three (3) months (the “Initial Term”) at which time the Agreement will automatically renew for successive monthly terms (the “Renewal Term”).
3.2. Termination for Cause. Either you or we may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach is: (a) incapable of cure or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Notwithstanding the above, we may terminate the Agreement or the applicable Order Form effective on written notice of termination to you if you fail to pay any undisputed Fees when due and such failure remains uncured ten (10) days after we provide you with written notice.
3.3. Effect of Termination. Upon termination of the Agreement: (a) each party will destroy any Confidential Information belonging to the other party in its possession; (b) you will immediately discontinue use of the Subscription Services, (c) all earned and unpaid Fees become immediately due; and (d) within ten (10) days of Termination, at your written request, instruction, and sole expense we will: (i) provide you with copies of all customer reports or records then in our possession or control in a commonly accessible data format, or (ii) delete all Customer Content in our possession or otherwise in our control unless we are legally prohibited to do so.
3.4. Survival. Any defined term with the Agreement, and this Section 3.4 (Survival) and Section 1.5 (Non-Accessicart Products), Section 1.7 (Subscription Services Security”), Section 2 (Restrictions; Responsibilities), Section 3.3 (Effect of Termination), Section 4 (Fees; Payment); Section 5 (Disclaimers; Limitation of Liability), Section 6 (Confidentiality), Section 7 (Intellectual Property Rights), Section 8 (Indemnification), and Section 9 (Miscellaneous) will survive the expiration or termination of the Agreement.
- FEES; PAYMENT.
4.1. Fees. You will pay us all subscription fees or other costs in the amount set forth in an applicable Order Form (the “Fees”). Fees are paid in advance, calculated and to be paid in U.S. dollars, and are non-refundable. The Fees on renewal of a Subscription Services Term shall be at our then-current fees for such Subscription Services as of the first day of the applicable renewal term.
4.2. Taxes. All Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You agree to pay any Taxes applicable to your use or receipt of our Subscription Services. If we are legally obligated to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.3. Non-Payment. If you fail to make payment when due, your access will immediately be suspended pursuant to Section 1.7 (“Suspension”) and, in addition to any other remedy available to us, we may apply interest at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date payment is received and you agree to reimburse us all costs (including but not limited to bad check fees or reasonable attorneys’ fees, costs, and expenses) incurred by us in collecting any delinquent payment or interest thereon.
- DISCLAIMERS; LIMITATION OF LIABILITY.
5.1. DISCLAIMER OF WARRANTIES.
THE WEBSITE AND OUR SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.2. Web Content Accessibility Guidelines.
The Subscription Services supports WCAG 2.3 AA success criteria to the extent detailed in the Accessibility Conformance Report for the Subscription Services. Our Subscription Services is intended to assist you in ensuring that a Customer Website or Application meets the WCAG 2.3 AA success criteria. PLEASE NOTE THAT THE WCAG AND BEST PRACTICES CHANGE AND EVOLVE ON A REGULAR BASIS AND OFTEN SUCH CHANGES ARE SUBSTANTIVE IN NATURE; AS A RESULT, WE DO NOT AND CANNOT GUARANTEE OUR SUBSCRIPTION SERVICES WILL BE COMPLETE OR ACCURATE OR THAT USE OF OUR SUBSCRIPTION SERVICES PROTECTS YOU FROM BEING SUED OR GUARANTEES COMPLIANCE WITH ALL ACCESSIBILITY LAWS.
5.3. NO LEGAL ADVICE.
ALL DECISIONS RELATED TO ACCESSIBILITY REMEDIATION WITHIN THE SUBSCRIPTION SERVICE ARE THE CUSTOMER’S RESPONSIBILITY. THE TECHNOLOGY, SERVICES, MATERIALS, AND INFORMATION PROVIDED BY US ARE NOT INTENDED, AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. WE CANNOT AND DO NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. EACH PARTY IS RESPONSIBLE FOR ITS OWN COMPLIANCE WITH APPLICABLE LAWS. PLEASE CONSULT WITH A QUALIFIED ATTORNEY VERSED IN WEBSITE ACCESSIBILITY PRIOR TO, AND AS PART OF, YOUR USE OF OUR SERVICES.
5.4. LIMITATION OF LIABILITY.
5.4.1. NO INDIRECT DAMAGES.
IN NO EVENT SHALL WE, OR ANY OF OUR AFFILIATES, BE LIABLE UNDER THE AGREEMENT OR ITS SUBJECT MATTER TO YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH OUR PROVISION (AND YOUR USE) OF THE SUBSCRIPTION SERVICES OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
5.4.2. MAXIMUM LIABILITY.
IN NO EVENT WILL OUR AGGREGATE AND TOTAL LIABILITY OR OUR AFFILIATES TO YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR PROVISION (OR YOUR USE) OF THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT PAID BY YOU TO US UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION.
5.4.3. REMEDY FAILS ESSENTIAL PURPOSE.
THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 5.4 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 5.4, AND THAT THE LIMITATIONS REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 6 by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
- INTELLECTUAL PROPERTY RIGHTS.
7.1. Ownership. All right, title, and interest in and to the Services, Usage Data, and Feedback, including all Intellectual Property Rights therein, are and will remain the property of Accessicart. You have no right, license, or authorization with respect to any of the Subscription Services, except as expressly set forth in this Agreement. To the extent useful or necessary, you unconditionally and irrevocably grant to us an assignment of all right, title, and interest in and to the Usage Data and Feedback, including all Intellectual Property Rights relating thereto.
7.2. Reservation of Rights. Other than expressly provided in this Agreement, nothing in this Agreement grants any right, title, or interest in or to (including any license under) and Intellectual Property Rights in or relating to, the Services, Customer Content, or Non-Accessicart Products, whether expressly, by implication, estoppel, or otherwise.
7.3. Customer Content. As between you and us, you are and will remain the sole and exclusive owner of all right, title, and interest in and to the Customer Content and, to the extent applicable, any Non-Accessicart Product, subject to the right and permissions granted in the Agreement.
8.1. Accessicart. We shall indemnify you for any out-of-pocket damages, judgments, approved settlement payments, costs, and reasonable outside attorneys’ fees you incur in defending any claim, demand, suit, or proceeding made or brought against you by a third-party (“Losses”) alleging that the Subscription Services, or your use of the Subscription Services as permitted hereunder, infringes or misappropriates that third-party’s Intellectual Property Rights. If we receive information about such Losses, we may in our discretion and at no cost to you: (a) procure for you the right to continue to use the affected Subscription Services under this Agreement, (b) modify or replace the allegedly infringing Subscription Services so that it no longer infringes but remains functionally equivalent, or (c) terminate the Order Form pertaining to the allegedly infringing Subscription Services and refund the Fees paid in respect of such Subscription Services for the remainder of the relevant Subscription Term starting with the date you lost use of the Subscription Services due to the Losses. The foregoing indemnity shall not apply if the Losses arise out of: (x) specifications or designs furnished by you and implemented by us at your request, (y) the Subscription Services being modified by, combined with, added to, interconnected with, or used in combination with software, application, hardware, equipment, or other technology not supplied by us where the Subscription Services would not by itself, misappropriate or be infringing, or (z) the use of the Subscription Services other than in accordance with the then-applicable Documentation. SECTION 7.1 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF US AND OUR AFFILIATES AND THE SOLE AND EXCLUSIVE REMEDY FOR YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER FOR ANY LOSSES COVERED UNDER SECTION 8.1.
8.2. Customer. You shall indemnify us against any Losses (a) alleging that a Customer Application or Customer Content, or our use of a Customer Application or Customer Content as permitted hereunder, infringes, or misappropriates a third-party’s Intellectual Property Rights; or (b) arising from your breach of the requirements of Section 2 (“Restrictions; Responsibilities”) of the Agreement.
8.3. Procedure. The Party seeking indemnification (as “Indemnitee”) will provide to the Party from whom indemnification is sought (as “Indemnitor”) prompt written notice of the Indemnitee’s Losses and, if requested by Indemnitor, provide reasonable assistance in the defense and settlement of any Losses. Indemnitor shall have sole control of the defense and settlement of the Losses; provided that, any settlement must unconditionally release Indemnitee of all liability and contain no admission of liability as to Indemnitee.
9.1. Notices. All notices, requests, claims, demands, waivers, and other communications to a party must be in writing, addressed to the intended recipient at the address set forth on the most recent Order Form, and sent by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid).
9.2. Force Majeure. In no event shall we be liable to you, or be deemed to have breached the Agreement, for any failure or delay in performing our obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstance beyond our reasonable control, including, but not limited to: flood, fire, hurricane, earthquake, pandemic, other acts of God or of nature, civil unrest, terrorism, war, third-party criminal or willful cyber-related acts, any action taken by a government authority or other public authority (such as imposing an embargo), or international, national, or regional shortage of adequate power, telecommunications capacity, or transportation (each a “Force Majeure Event”).
9.3. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
9.3. Entire Agreement. The Agreement constitutes the sole and entire agreement of the parties, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In case of any conflict or inconsistency between the statements made in the Terms, an Order Form, the Documentation, or any document incorporated by reference, unless such inconsistency is expressly acknowledged as intended in a document, the following order of precedence governs: (a) first, these Terms; (b) second, the applicable Order Form; (c) third, the Documentation; and (d) lastly, the document incorporated by reference. The Agreement may be executed in counterparts, each of which is deemed an original, but all such counterparts will constitute one and the same agreement.
9.4. Amendment. Unless you have a separately negotiated and signed agreement stating otherwise, we may modify the Terms or the Agreement by posting a revised version of these Terms on our Website and such revised version will be effective the following day. If you do not agree with a material modification to these Terms or the Agreement, you must notify us in writing within seven (7) days of publication of the revised Terms. If you provide this valid notice, then your subscription will continue to be governed by the former Terms of the Agreement until your next renewal date, after which the current terms posted at the webpage will apply. However, if we can no longer reasonably provide the Subscription Services to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any applicable prepaid but unused Fees.
9.5. Assignment. Neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party; provided, however, we may assign our rights or delegate our obligations, in whole or in part and without such consent, to an entity that acquires all or substantially all of our business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Any assignment or delegation in violation of this Section is void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder unless the non-assigning or non-delegating party agree to a novation releasing the assigning or delegating party of its obligation under this Agreement.
9.6. Severability; Interpretation. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the Agreement invalid or otherwise unenforceable in any respect. If any provision of the Agreement is deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will be interpreted to achieve its original effect to the maximum extent permitted by applicable law, and will not affect any other term or provision of the Agreement, invalidate, or render unenforceable such term or provision in any other jurisdiction. The parties agree the Agreement will not be construed in favor of or against either party by reason of authorship.
9.7. Governing Law. The Agreement is governed solely by, and construed in accordance with, the internal laws of the state of Oregon without giving effect to any choice or conflict of law principle that would apply the laws of any other jurisdiction to the parties’ rights and duties. Any action arising out of or related to the Agreement, or the subject matter herein will be instituted exclusively in the federal or state courts of Deschutes County, Oregon (USA), and each party irrevocably consents to the exclusive and personal jurisdiction of such courts in any such suit, action, or proceeding, including without limitation tort cases. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR AGREEMENT.
9.8. Accrual. A party must file a claim arising, directly or indirectly, from the Agreement or provision of the Subscription Services no later than two (2) years after the claim accrued.
9.9. Customer Acknowledgment. You acknowledge and agree that we may include your name and logo in our promotional and marketing materials in the portions of the same where we list our current or former customers.
9.10. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving, nor will a party’s failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.