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Terms Of Service

Last Updated: December 8, 2020

Terms Of Service

Terms Of Use

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IMPORTANT, READ CAREFULLY: CLIENT’S USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE "SERVICES") OF EBANQO, INC. AND ITS AFFILIATES ("EBANQO") IS CONDITIONED UPON CLIENT’S COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE CLIENT’S AGREEMENT TO ARBITRATION OF CERTAIN CLAIMS. PLEASE REVIEW THESE TERMS OF SERVICE THOROUGHLY BEFORE ACCEPTING OR USING THE SERVICES.

BY CLICKING/CHECKING THE "I AGREE" BUTTON/BOX, ACCESSING THE EBANQO WEBSITE, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILIZING ANY EBANQO SERVICES, CLIENT AGREES TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (TOGETHER, THE “AGREEMENT”, THESE “TERMS” OR “TOS”). THE EBANQO SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS IN THIS AGREEMENT, IN WHICH CASE THE TERM CLIENT SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement is made between eBanqo, Inc., a Delaware corporation, with its principal place of business at 5180 Breezewood Circle, Alpharetta, Georgia 30004, USA, and Client. eBanqo is an Omni-channel Customer Engagement Platform (the “Platform”) provider and offers solutions to companies and businesses for electronic interactions with their customers. Client wishes to use one or more of eBanqo’s Services in its business operations. eBanqo wishes to provide such Services, and Client wishes to use and pay for the Services, in accordance with this Agreement. eBanqo may provide any of the Services hereunder through any of its Affiliates. If Client orders Services through an on-line registration page or an order form (each an "Order Form"), the Order Form may contain additional written terms and conditions and information regarding the Services Client is ordering. Unless otherwise expressly set forth in writing in any such additional terms and conditions applicable to the specific Service which Client chooses to use under such Order Form, those additional terms and conditions are hereby incorporated into this Agreement in relation to Client’s use of that Service.



1. DEFINITIONS.

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by or is under common control with that Party. For purposes of this Agreement,

“Control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.

“API” means application programming interface.

“Applications” means software-based tools that provide a visual interface designed to operate and utilize the Platform.

“Channels” means the touch points that allow interactions with and between End Users, such as Web chat, WhatsApp, Facebook Messenger, Instagram, Telegram, WeChat, Apple Business Chat, RCS, SMS, Voice, and E-mail.

“Claim” means a third-party claim, demand, suit or proceeding.

“Client” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a a company, business or any legal entity, the company or legal entity on behalf of which such individual is accepting this Agreement.

“Confidential Information” means: (i) the terms and conditions of this Agreement; (ii) any non-public personal information and data of individual customers which is subject to applicable data privacy laws and regulations; (iii) and any and all confidential or proprietary information provided by one Party (the “Disclosing Party”) to another Party (the “Receiving Party”) in connection with this Agreement or the business arrangements contemplated by this Agreement, including without limitation: all ideas, technology, know-how, technical data, products, software, works of authorship, assets operations, contractual relationships, business plans, trade secrets, software (object code and source code), flow charts, file specifications, documentation, systems, procedures, manuals, data file content, financial data, marketing plans, customer lists, confidential reports, and other information which is not at the time of disclosure: (A) known generally to the public through no act or omission in violation of this Agreement, (B) furnished to the Receiving Party by a third party having the lawful right to do so, or (C) known to the Receiving Party prior to disclosure by the Disclosing Party. For the avoidance of doubt, the specific content of this Agreement, details of the Platform, supporting documentation, the Services, any data or information transmitted by Client through the Platform or used by Client for or in connection with the Services, and the results of any performance tests will be regarded as Confidential Information.

“Conversational Flows” means the automation of workflows with or without integration to Client’s systems.

“eBanqo Library” means the developers’ resources concerning the use of the Services available on ebanqo.com and ebanqo.io.

“eBanqo Messenger” means eBanqo’s client portal available online at eBanqo.io or as an app downloadable from app stores.

“End User” means an employee, contractor, customer, prospective customer of Client, and any other individual who uses the Services on Client’s behalf or through Client’s account or passwords, whether authorized or not.

“Fee(s)” means the prices paid by Client for the access and use of the Services.

"Initial Subscription Term" means the initial subscription term for a Service as specified in an Order Form.

“Message” or “Messages” means a set of systematized, textual, numerical, graphical or phonetical characters transmitted between Client and an End User on the Channels.

“Party” or “Parties” means eBanqo and Client individually or together.

"Renewal Term" means the renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term as specified in an Order Form.

“Services” means all services and subscriptions provided by eBanqo to Client, including, without limitation, eBanqo Messenger, the API, and the Channels (generally referred to, unless the context requires otherwise or is differently defined in the Order Form or in eBanqo Messenger).

"Service Effective Date" means the date an initial subscription term begins as specified in an Order Form.

“SLA” means eBanqo’s standard service level agreement, currently posted at eBanqo’s website or as eBanqo determines from time to time.

“Subscription” means the plan Client elects for access to and/or use of the Services.

“Subscription Fee(s)” means the monthly or yearly recurring fees Client is charged for the Subscription. In the event Client decides to upgrade its Subscription, the relevant Subscription Fee of the higher-tier Subscription shall apply pro-rata for the remainder of the term of the Services. Any changes to the Subscription Fee shall be applicable as of the date of renewal of the Services.

“Taxes” means any and all applicable local, federal and state taxes, fees, charges, telecommunications provider surcharges, withholding taxes or other similar taxes, including, but not limited to, VAT, GST, sales tax and/or use tax.

“Third-Party Applications” means third-party internet-based or offline enabled software applications, operating systems, and other types of platforms that interoperate with the Service to enable its complete range of functionality. For the avoidance of doubt, telecom network providers (such as network (mobile) operators or virtual (mobile) network operators) are excluded from this definition.

“Third-Party Applications Terms” means the terms and conditions, and/or usage policies which directly or indirectly apply to use of the Third-Party Applications by Client.

“Trial Period” means the period agreed by the Parties for the Client to use the Services for free. Client is entitled to terminate the Agreement before the Trial Period expires free of charge. Failure to terminate the Agreement before the end of the Trial Period, as per the terms and conditions indicated in eBanqo Messenger, the Order Form, or on ebanqo.com will result in the applicable Fees applying and being due and payable for the period agreed on the ebanqo.com website, eBanqo Messenger, or Order Form.



2. SERVICES

a. During the Term, eBanqo will provide the Services as described on the Order Form, together with standard updates to the Services that are made generally available by eBanqo during the Term.

b. Service Levels. eBanqo shall provide the remedies listed in the SLA for any failure of the Services listed in the SLA. Such remedies are Client’s sole remedy for any failure of the Services, and Client recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. eBanqo is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.

c. System Revisions. eBanqo may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice. eBanqo may revise features and functions of the Services or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Services materially reduces features or functionality provided pursuant to an Order Form, Client may within 30 days of notice of the revision terminate such Order Form, without cause, or terminate this Agreement without cause if such Order Form is the only one then-outstanding.

d. Beta Services. eBanqo may, from time to time, offer access to services that are classified as Beta versions. Access to and use of Beta versions may be subject to additional agreements. eBanqo makes no representations that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS-IS, without representation or warranty of any kind whatsoever, may contain bugs, errors or other defects, and Client’s use of a Beta version is at Client’s sole risk.

e. Free Trial. If Client registers on eBanqo’s website for a free trial, eBanqo will make the applicable Service(s) available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client registered to use the applicable Service(s), or (b) the start date of any Subscriptions ordered by Client for such Service(s), or (c) termination by eBanqo in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

(1) ANY DATA CLIENT ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CLIENT, DURING CLIENT’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CLIENT CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CLIENT PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CLIENT MUST EXPORT CLIENT DATA BEFORE THE END OF THE TRIAL PERIOD OR CLIENT DATA WILL BE PERMANENTLY LOST.

(2) NOTWITHSTANDING THE “REPRESENTATIONS; DISCLAIMER OF WARRANTIES” SECTION AND “INDEMNIFICATION” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EBANQO SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EBANQO’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, EBANQO AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EBANQO AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

(3) CLIENT SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.



3. USE OF SERVICES AND CLIENT RESPONSIBILITIES AND RESTRICTIONS

Client may only use the Services pursuant to the terms of this Agreement. Client is solely responsible for Client and Client End Users’ use of the Services and shall abide by, and ensure compliance with, all laws in connection with Client and each End User’s use of the Services, including but not limited to laws related to intellectual property, privacy, and export control. Use of the Services is void where prohibited.

a. Registration Information. Client may be required to provide information in order to register for and/or use certain Services. Client agrees that any such information shall be accurate. Client and End Users may also be asked to choose a user name and password. Client and End Users are entirely responsible for maintaining the security of user name and password and agree not to disclose such to any third party.

b. Client acknowledges and understands that (i) eBanqo is only a conduit for the transmission of information sent by Client or End User, and eBanqo neither initiates the transmission of information, selects the receivers of the transmission, nor selects or modifies the information contained in the transmission; (ii) when using the Service, Client is responsible for determining whether the Service is suitable for Client to use in light of applicable laws and regulations, such as, and without limitation, consumer protection and telecommunication laws such as the Telephone Consumer Protection Act of 1991 (TCPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and eBanqo is not liable if the Service does not comply with such laws and regulations.

c. Client Content.

(1) Content. Client agrees that Client and its End Users are solely responsible for the content ("Content") sent or transmitted by Client or displayed or uploaded by Client in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, laws requiring Client to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. Client represents and warrants that Client has the right to upload the Content and that such use does not violate or infringe on any rights of any third party. Under no circumstances will eBanqo be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although eBanqo is not responsible for any Content, eBanqo may delete any Content, at any time without notice to Client, if eBanqo becomes aware that it violates any provision of this Agreement, or any law. Client retains copyright and any other rights Client already hold in Content which Client submits, posts or displays on or through, the Services.

(2) Use of Content. Unless it receives Customer’s prior written consent, eBanqo: (a) shall not access, process, or otherwise use Content other than as necessary to facilitate the Services; and (b) shall not intentionally grant any third party access to Content, including without limitation eBanqo’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, eBanqo may disclose Content as required by applicable law or by proper legal or governmental authority. eBanqo shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. As between the parties, Customer retains ownership of Content.

(3) Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. eBanqo offers no representation, warranty, or guarantee that Content will not be exposed or disclosed through errors or the actions of third parties.

(4) Data Accuracy. eBanqo will have no responsibility or liability for the accuracy of data uploaded to the Services by Customer, including without limitation Content and any other data uploaded by End Users.

(5) Data Deletion. eBanqo may permanently erase Content if Customer’s account is delinquent, suspended, or terminated for 30 days or more.

(6) Aggregate & Anonymized Data. Notwithstanding the provisions above of this Section 3.c., eBanqo may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Content with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)

d. Prohibited Use. Client shall not use, and will not permit any End User to: (i) use the Services to modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts eBanqo’s networks, Client accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading; (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of eBanqo or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or eBanqo’s security systems; (ix) use the Services in violation of any eBanqo policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and Client agrees that End Users are solely responsible for compliance with all such laws and regulations; (x) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (vii) provide Services passwords or other log-in information to any third party; (viii) share non-public Services features or content with any third party; (ix) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; or (x) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler..

e. Client and End User Security. Client shall, at its own expense, take all security measures necessary to: (i) prevent any unauthorized and/or third-party access to the Services and Client’s passwords, accounts or keys to the platform and/or eBanqo Messenger; (ii) prevent overuse of the Services such as denial-of-service attacks by implementing rate limiting where applicable; (iii) prevent spam and fraudulent traffic by implementing blacklists, content filters and other suitable controls; and (iv) ensure timely detection of and response to security incidents, by implementing security monitoring tooling and having security incident response plans and procedures in place. Client shall conduct regular vulnerability assessments and penetration testing to ensure its implementation of the Services is secure. Client shall inform eBanqo by sending an email to security@ebanqo.com within twenty- four (24) hours of becoming aware of any known or suspected unauthorized access to the Services or breach or security incident involving the Service, and Client shall use its best efforts to stop said unauthorized access, breach or incident. Client shall provide promptly all information reasonably requested by eBanqo: (i) to confirm Client’s compliance with its obligations under this Agreement, the applicable laws and regulations; or (ii) in response to any request made by any legal, regulatory, self-regulatory, governmental authority, supplier, or operator of a telecommunication network or system.

f. Compliance with Laws. In its use of the Services, Client shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Content.

g. Limitations on Use. Client shall not, and will not permit any End User to, (i) reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless Client has been specifically permitted to do so under a separate written agreement with eBanqo; or (ii) offer or enable any third parties to use the Services purchased by Client, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by Client) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

h. Use of WhatsApp Business Solution. If Client adopts the WhatsApp Business Solution, Client agrees to be bound by the WhatsApp Business Solution Terms (currently available at: https://www.whatsapp.com/legal/business-solution-terms), which incorporates without limitation, the WhatsApp Business Terms of Service (currently available at https://www.whatsapp.com/legal/business-terms/) (collectively, the “WhatsApp TOS”). For clarity, except as expressly stated herein, the WhatsApp TOS applies unchanged and in full force and effect to Client. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the WhatsApp TOS, the provisions of this Agreement will control, but only to the extent of such conflict or inconsistency.

i. Responsibility for Client. Client is responsible and liable for (a) the activities of all End Users who access or use the Services through Client accounts, including without limitation unauthorized End User conduct and any End User conduct that would violate the requirements of this Agreement applicable to Client, and (b) any use of the Services through Client’s account, whether authorized or unauthorized. Client shall ensure that any such End User complies with the terms of this Agreement and any eBanqo policies. eBanqo assumes no responsibility or liability for violations. If Client becomes aware of any violation of this Agreement in connection with use of the Services by any person, please contact eBanqo at legal@ebanqo.com. eBanqo may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or End User profiles. Under no circumstances will eBanqo be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.

j. Eligibility. Client affirms that End Users are at least 16 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Client access may be terminated without warning if we believe that End Users are under the age of 16 or are otherwise ineligible.

k. Intended Use; Restriction on Use by Children. The Services are intended for business use. Client may choose to use the Services for other purposes, subject to the terms and limitations of this Agreement. eBanqo is not intended for use by individuals under the age of 16, unless it is through a school subscriber using eBanqo for education.



4. CLIENT CONTENT.



a. Unless it receives Client’s prior written consent, eBanqo shall not intentionally grant any third party access to Content, including without limitation eBanqo’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. As between the parties, Client retains ownership of Content. eBanqo will notify Client if it becomes aware of unauthorized access to Content. eBanqo will not access, view, disclose or process Content except (a) as provided for in this Agreement and in eBanqo’s Privacy Statement; (b) as authorized or instructed by Client, (c) as required to perform its obligations under this Agreement; or (d) as required by Law or by applicable legal or governmental authority, provided that eBanqo shall give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense. eBanqo has no other obligations with respect to Content, and has no responsibility or liability for the accuracy of data uploaded to the Services by Client, including without limitation Content and any other data uploaded by End Users.

b. Data Deletion. eBanqo may permanently erase Content if Client’s account is delinquent, suspended, or terminated for 30 days or more.

c. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Section 4, eBanqo may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. As used herein, “Aggregate Data” refers to Content with the following removed: personally identifiable information and the names and addresses of Client and any of its end Users or customers.)



5. FEES AND PAYMENT

a.Fees; Taxes. Client shall pay the Fees as set forth on ebanqo.com’s pricing page, as may be updated from time to time, or as agreed otherwise by Client and eBanqo in eBanqo Messenger or the applicable Order Form. Unless otherwise stated, all Fees exclude any applicable Taxes, including any related interest and/or penalties, and other government duties, as well as any other costs, such as transaction costs or bank transfer fees. In the event that Taxes are (or will be) applicable to the Services set out in this Agreement, such Taxes shall be added to the Fees. Client shall be responsible for and pay all Taxes as well as any other costs imposed on or with respect to the Services that are subject to this Agreement. If Client is exempt from VAT or GST, or if VAT or GST should be accounted for under a reverse charge mechanism or similar procedure, it is the responsibility of Client to provide eBanqo with a valid VAT or GST registration number. If for any reason the local taxing authorities determine that Client is not exempt from any such Taxes and imposes such Taxes on eBanqo, Client agrees to promptly pay eBanqo such Taxes, including any applicable interest or penalties imposed by the local tax authorities. If Client is required by law to withhold or pay Taxes, levies and/or fees of any nature, Client shall withhold or pay such Taxes, levies and/or fees and shall timely pay the full amount(s) to the relevant governmental authority in accordance with applicable law. eBanqo shall not be responsible for such Taxes, levies and/or fees. Additionally, the Fees payable by Client to eBanqo shall be increased as necessary so that, net of such payments, Client will pay to eBanqo such additional amounts as are necessary to ensure recipient of the full amount which eBanqo would have received before the withholding or paying of Taxes.

b. Charges and Cancellation. Client agrees that eBanqo may charge to Client’s credit card or other payment mechanism selected by Client and approved by eBanqo ("Client Account") all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Client Account. eBanqo may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that eBanqo will provide Client with prior notice and an opportunity to terminate the Client Account if eBanqo changes the price of a Service to which Client is subscribed and will not charge Client for a previously free Service unless Client have been notified of the applicable fees and agreed to pay such fees. Client agrees that in the event eBanqo is unable to collect the fees owed to eBanqo for the Services through Client Account, eBanqo may take any other steps it deems necessary to collect such fees from Client and that Client will be responsible for all costs and expenses incurred by eBanqo in connection with such collection activity, including collection fees, court costs and attorneys' fees. eBanqo’s invoices are due within 30 days of issuance. Client further agrees that eBanqo may collect interest at the lesser of 1.5% per month or the highest amount permitted by applicable law on any amounts not paid when due. Client may cancel Client’s subscription at any time. If Client cancels, Client will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If Client cancels, Client will not receive a refund for any Service already paid for.

c. If Client has not paid any sums when due hereunder, eBanqo may, at its option, suspend the Services and any related support services under an applicable SLA until such past due sums are paid, regardless of whether or not this Agreement has been terminated.



6. TERM AND TERMINATION.



a. This Agreement commences on the date Client first accepts it and continues until all Services subscriptions hereunder have expired or have been terminated. The eBanqo website contains information on how to terminate the Client Account.

b. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at eBanqo’s applicable list price in effect at the time of the applicable renewal.

c. If Client has purchased a Service for a specific term, such termination will be effective on the last day of the then-current term as set forth in the applicable Order Form. A Client Order Form may provide that a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term.

d. If Client fails to comply with any provision of this Agreement, eBanqo may terminate this Agreement immediately and retain any fees previously paid by Client.

e. Sections 1 and 3 through 16, inclusive, shall survive any termination of this Agreement.

f. Upon any termination of this Agreement, Client shall cease any further use of the Services. If at any time Client is not happy with the Services, Client sole remedy is to cease using the Services and follow this termination process.



7. PROPRIETARY RIGHTS; FEEDBACK; CONFIDENTIAL INFORMATION.



a. Proprietary Rights; Copyright.

(1) eBanqo and/or its suppliers, as applicable, retain ownership of all right, title and interest in and to the Services and all underlying software used to provide the Services, and in all trade names, trademarks, service marks, logos, and domain names ("eBanqo Marks") associated or displayed with the Services, and all graphics and user interfaces reproduced through the Services. Client may not frame or utilize framing techniques to enclose any eBanqo Marks, or other proprietary information (including images, text, page layout, or form) of eBanqo, without eBanqo’s prior express written consent. Client may not use any meta tags or any other "hidden text" utilizing eBanqo Marks without eBanqo’s express prior written consent.

(2) Copyright. Client may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. eBanqo may deny access to the Services to any Client who is alleged to infringe another party's copyright. Without limiting the foregoing, if Client believes that Client copyright has been infringed, please notify eBanqo.

b. Feedback. eBanqo has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Client or End Users provide to eBanqo, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict eBanqo’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the End User in question. Notwithstanding the provisions of Section 9.c. below, Feedback will not be considered Confidential Information. As used herein, “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of eBanqo’s products or services. c. Confidential information.

(1) All Confidential Information communicated by a Disclosing Party to a Receiving Party in connection with this Agreement or the business arrangements contemplated by this Agreement shall be used by the Receiving Party solely for the purposes contemplated by this Agreement. Except as provided in Section 7.c(2), Confidential Information shall not be disclosed by the Receiving Party to anyone other than its employees, agents, contractors, auditors, attorneys and advisors and ensure their full compliance of this Agreement, without the prior written consent of the Disclosing Party. In the event of termination or expiration of this Agreement, the Parties shall return or destroy, and remove all electronic copies of, Confidential Information received during the course of this Agreement.

(2) Disclosure to Regulatory Authorities; Court Orders. Confidential Information may be disclosed by the Receiving Party to a Regulatory Authority with jurisdiction over the Receiving Party or pursuant to a government, Regulatory authorities or court order requiring such disclosure. To the extent practicable and permitted under the law, the Receiving Party shall give the Disclosing Party notice of such orders to disclose to permit the Disclosing Party an opportunity to seek a protective order or other remedy limiting such disclosure.

(3) Each party acknowledges and agrees that any violation of this Section 7 may cause the Disclosing Party irreparable injury for which the Disclosing Party would have no adequate remedy at law, and that the Disclosing Party shall be entitled to seek preliminary and other injunctive relief against the Receiving Party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that Disclosing Party shall have at law or in equity.

(4) Client acknowledges and agrees that it will not disclose to eBanqo any personal data of EU data subjects (as defined by EU General Data Protection Regulation 2016/679), personal information of California residents (as defined by Cal Civ Code Secs. 1798.100-1798.199), protected health information (as defined by the Health Insurance Portability and Accountability Act and its implementing regulations), third-party credit card or other payment processing information, or other sensitive personal information or information regulated by applicable law, until the parties have mutually agreed to an addendum setting forth each party’s obligations with regard to the collection and use of the protected data.



8. RESTRICTIONS.



Client shall (i) comply with all applicable international trade laws, including without limitation, (a) economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by U.S. Governmental Authorities (including, but not limited to, the Office of Foreign Assets Control (“OFAC”), the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant Governmental Authority and (b) the export controls laws and regulations of the United States of America and the European Union (collectively, (a) and (b), “International Trade Laws”), and shall obtain all export licenses and/or governmental approvals, whenever necessary. Client represents, warrants and covenants during the term of this Agreement that (i) neither it or its directors, officers, affiliates, employees or agents is named on or owned or controlled by any person or entity named on, any list of designated persons or entities of the United States of America and the European Union, or any other applicable jurisdictions under International Trade Laws or otherwise the target of International Trade Laws (a “Sanctions Target”), (ii) it is not located, organized or resident in any jurisdiction subject to comprehensive sanctions under International Trade Laws, and (iii) it will not (a) permit any End User or any other person or entity to access or use the Service if the End User is a Sanctions Target or (b) permit End Users or any other persons or entities to access or use the Service in violation of any International Trade Laws or in a manner that could cause eBanqo or any of its directors, officers, affiliates, employees or agents to be in violation of International Trade Laws.



9. NO HIGH RISK USE



The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.



10. INJUNCTIVE RELIEF

Client acknowledges that any use of the Services contrary to this Agreement, any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, or any breach of the confidentiality obligations set forth in this Agreement, may cause irreparable injury to eBanqo, its Affiliates, suppliers and any other party authorized by eBanqo to resell, distribute, or promote the Services ("Resellers"), and under such circumstances eBanqo, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.



11. REPRESENTATIONS; DISCLAIMER OF WARRANTIES.



a. From eBanqo. eBanqo represents and warrants that it is the owner of the Services and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Services set forth in this Agreement without the further consent of any third party. eBanqo’s representations and warranties in the preceding sentence do not apply to use of the Services in combination with hardware or software not provided by eBanqo. In the event of a breach of the warranty in this Section 11, eBanqo, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the Services; (b) replace or modify the Services to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states eBanqo’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 11 and for potential or actual intellectual property infringement by the Services. b. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Services; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law. c. DISCLAIMER OF WARRANTIES. CLIENT UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED "AS IS" AND EBANQO, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EBANQO, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT CLIENT’S SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT CLIENT’S OWN DISCRETION AND RISK. CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT AND END USERS RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH CLIENT. EBANQO DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. EBANQO CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT CLIENT’S OWN RISK.



12. INDEMNIFICATION.



Client shall indemnify, defend and hold harmless eBanqo and eBanqo Associates from and against any and all third party Claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising out of or related to (i) Client’s actual or alleged use or misuse of, or failure to use, the Services, including without limitation claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Content; (ii) Client’s violation of this Agreement; or (iii) the infringement or violation by Client or End Users (by written material, images, logos or other content uploaded to the Services through Client’s account, including without limitation by Content) of any intellectual property or other right of any person or entity or applicable law. Indemnified Claims include, without limitation, claims arising out of or related to eBanqo’s negligence. Client’s obligations set forth in this Section 12 include retention and payment of attorneys and payment of court costs, as well as settlement at Client’s expense and payment of judgments. eBanqo will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “eBanqo Associates” are eBanqo’s officers, directors, shareholders, parents, subsidiaries, agents, Resellers, successors, and assigns.)



13. LIMITATION OF LIABILITY.



TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EBANQO OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OR MISUSE OF OR INABILITY OR FAILURE TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF EBANQO, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IN ANY CASE, EBANQO'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 13, EBANQO’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, EBANQO’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 13 APPLY LIKEWISE TO EBANQO’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.



14. AGREEMENT TO ARBITRATE



. If Client is located in the United States, Clients agree to resolve disputes only on an individual basis, through arbitration pursuant to the provisions of this section.The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity; provided, however, that the foregoing shall not limit or restrict in any way eBanqo exercising its rights under Section 10 (Injunctive Relief) of this Agreement or a party exercising its rights to seek equitable relief to protect its Confidential Information and protect its intellectual property rights.

a. Disputes. For purposes of this Section 14, a “dispute” is any controversy between Client and eBanqo concerning the Services, any software related to the Services, the price of the Services, Client Account, eBanqo’s advertising, marketing, or communications, Client’s purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Client’s or eBanqo’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide written notice (including to legal@ebanqo.com if Client is notifying eBanqo of such dispute) of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution (each, a “Dispute Notice”). Within 10 business days after the date of the Dispute Notice, senior management representatives of each party shall meet in person or by telephone or videoconference to attempt in good faith to try to resolve such dispute (each, a “Dispute Conference”).

b. Arbitration Procedure. Disputes not resolved within 10 business days after the Dispute Conference shall be resolved through mandatory, binding arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator mutually agreed upon by the Parties, or in the absence of such agreement within thirty (30) days from the first referral of the Dispute to the American Arbitration Association, designated by the American Arbitration Association. The place of arbitration shall be Atlanta, Georgia, USA. The arbitral award shall be final and binding. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each Party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) to enforce any decision of the arbitrator, including the final award. In no event shall any Party to the arbitration be entitled to punitive, exemplary or similar damages

c. Conflict with AAA Rules. This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.

d. Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.

e. Severability. If any provision of this section is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this section, inclusive of the severed provision.



15. PRIVACY AND OTHER POLICIES.



Use of the Services is also subject to eBanqo’s SLA and its Privacy Policy, links to which can be found by selecting “SLAs” or “Privacy Policy” in the footer of eBanqo’s website. The SLA and Privacy Policy, and all policies noticed at eBanqo’s website are incorporated into this Agreement by this reference. Additionally, Client understands and agrees that eBanqo may contact Client via e-mail or otherwise with information relevant to Client use of the Services, regardless of whether Client has opted out of receiving marketing communications or notices. The Privacy Policy and SLA apply only to the Services and do not apply to any third-party website or service linked to the Services or recommended or referred to through the Services or by eBanqo’s staff.



16. GENERAL PROVISIONS



a. Governing Law. This Agreement shall be construed, interpreted and governed by the laws of the State of Georgia, USA without regard to conflicts of law provisions thereof. Client agrees that the exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court sitting in Atlanta, Georgia, USA.

b. Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.

c. Force Majeure. Except for the payment of Fees, each Party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control in the event (i) it could not have been avoided or corrected through (a) the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, labor strikes not involving either party’s employees, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third-Party Applications, failure of any third-party operating systems, platforms, applications or networks not under reasonable control of eBanqo, or (b) other similar occurrence; in addition, the Parties will be excused from future performance under this Agreement, if (ii) any Party becomes the subject or target of economic or financial sanctions or restrictive measures administered or enforced by competent governmental authorities, or (iii) the performance of any aspect of this Agreement would require a Party to this Agreement to engage in a transaction with a person that is or is owned fifty percent (50%) or more in the aggregate by any person that is the target of economic or financial sanctions or restrictive measures administered or enforced by competent governmental authorities or is otherwise subject to restrictive measures.

d. Entire Agreement. This Agreement, including applicable Order Forms, embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof, except that if Client has executed a separate written agreement or Client has signed an Order Form referencing a separate agreement governing Client’s use of the Services, then such agreement or Order Form shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Neither party has relied upon any such prior or contemporaneous communications.

e. Amendment. eBanqo may elect to change or supplement the terms of this Agreement from time to time at its sole discretion by posting an amended version of this Agreement at its website and sending notice to Client thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Client first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Client’s next Term following the Proposed Amendment Date (unless Client first terminates this Agreement pursuant to Section 6, Term and Termination). Client’s continued use of the Services following the effective date of an amendment will confirm Client’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 16.e., eBanqo may revise the Privacy Policy and SLA at any time by posting a new version of either at the website, and such new version will become effective on the date it is posted.

f. In order to participate in certain Services, Client may be notified that Client is required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.

g. Notices. All notices, requests and approvals required by this Agreement shall be in writing addressed/directed to the other Party at the address and email set forth below their respective signatures at the end of this Agreement, or at such other address of which the notifying Party hereafter receives notice in conformity with this section. All such notices, requests, and approvals shall be deemed given upon the earlier of receipt of email transmission during the normal business day or actual receipt thereof.

h. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

i. Assignment & Successors. Neither party shall assign, sell or transfer this Agreement, or its rights or obligations hereunder, without the prior written consent of the other party; provided, however, that either party may assign this Agreement without consent, but with written notice, to any of its affiliates or to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.

j. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.