This Platform Agreement (this “Agreement”) is entered into by and between Mealogix, Inc., a Delaware corporation (“Company”) and the person or entity named in the Registration Form being submitted in connection with this Agreement (such person or entity, the “Customer”).
BY CLICKING ON “AGREE”, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY CUSTOMER TO BIND CUSTOMER TO THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND ONLY CLICK ON “AGREE” IF YOU AGREE THAT CUSTOMER SHALL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.
“Consumer” means an individual or entity that places an Order.
“Customer Content” means any and all data, information, content and materials uploaded or otherwise submitted through the Platform by or on behalf of Customer, including without limitation the Menu Content.
“E-Commerce Site” means the website providing for shopping cart and ordering functionality for Customer’s food and beverage offerings that is published by Customer through use of the Platform and hosted by Company.
“Effective Date” means the date on which the Registration Form is submitted by Customer.
“Fees” means all fees payable by Customer to Company hereunder.
“Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
“Menu Content” means each description of each Menu Item, and all other information and content (e.g., photos, list of ingredients, nutrition information), that is uploaded or otherwise submitted into the Platform by Customer for publication on the E-Commerce Site.
“Menu Item” means each individual food and/or beverage item made available by Customer for purchase on the E-Commerce Site.
“Order” means an order for Customer’s Menu Item(s) placed by a Consumer through the E-Commerce Site.
“Platform” means the Company’s proprietary meal preparation business management and e-commerce software-as-a-service currently made available at www.meallogix.com, as such software-as-a-service may be modified from time to time by Company.
“Registration Form” means the online form at Company’s website that is being filled out and submitted by Customer in connection with Customer’s entry into this Agreement.
“Transaction Data” means all data relating to transactions entered into by Customer with any Consumer or other third party that is processed and/or stored in connection with the Platform (e.g., Order-related data, data regarding Customer’s transactions with providers of ingredients).
ACCESS TO PLATFORM.
Right to Use. Subject to all terms and conditions of this Agreement, including Customer’s timely payment of all amounts due hereunder, Company hereby grants to Customer, during the term of this Agreement, a limited, nonexclusive, nontransferable right to access and use the Platform for the sole purpose of managing the operation of Customer’s meal preparation business identified in the Registration Form and publishing an E-Commerce Site, in each case as enabled by the Platform’s functionality and accordance with all applicable documentation and other instructions and requirements provided by Company. Customer acknowledges that Platform features and functionality available to Customer may depend on the type of Platform subscription for which Customer is registered.
Restrictions. Customer has no rights or licenses with respect to the Platform except as expressly provided in this Agreement. Without limiting the generality of the foregoing, Customer may not (i) copy, modify, distribute, rent, lease, lend, sublicense, transfer or make the Platform available to any third party, (ii) use the Platform on a service bureau basis, on behalf of a third party or in connection with the operations of any business not owned by Customer; (iii) decompile, reverse engineer, or disassemble the Platform, (iv) create derivative works based on the Platform; (v) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (vi) publicly disseminate performance information or analysis (including benchmarks) relating to the Platform without the prior written consent of Company; or (vii) use the Platform to develop a competitive product offering.
Customer Responsibilities. Customer is solely responsible for purchasing and configuring all hardware, software and services (including Internet service) that may be necessary or desirable for Customer’s use of the Platform at Customer’s own expense. Customer acknowledges that use of certain features and functionality of the Platform may require that Customer register for accounts with certain third party service providers and agree to applicable third party terms and conditions, and that Company shall have no liability of any kind to Customer with respect to any acts or omissions of any such third party service providers. Customer agrees to comply with all applicable laws, rules and regulations in connection with Customer’s use of the Platform.
Suspension/Termination. Without limiting the generality of Section 8.2, Company may suspend, limit or terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; or (ii) Customer attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other customers of the Platform or any use in connection with any activity that may violate any applicable law, rule or regulation.
Accounts. Customer is responsible for the activities of any and all persons accessing the Platform using any user name and password issued to Customer. Customer shall use, and shall instruct its personnel to use, all reasonable means to secure user names and passwords, and shall promptly notify Company if it suspects that any user name and password has been compromised.
Third Party Services. The Platform may include features or functionality that interoperate with services operated by third parties such as food delivery services, payment processing services and grocery distributors (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Customer acknowledges that interoperability with Third Party Services is provided as a convenience and does not constitute material functionality of the Platform or form any basis for the payment of Fees hereunder. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
Modifications; Availability. Company reserves the right to modify and update the features and functionality of the Platform from time to time in its sole discretion. While Company shall use commercially reasonable efforts to ensure the ongoing availability of the Platform, Company makes no representation, warranty or guarantee regarding the continuous availability or performance of the Platform. Customer acknowledges that the Platform may, in whole or in part, be unavailable for use from time to time without notice to Customer.
Customer Content. Customer represents and warrants that: (a) all Menu Content shall be accurate, complete and not misleading; (b) it owns all Intellectual Property Rights in and to all Menu Content or has valid licenses with respect thereto sufficient for use thereof as contemplated hereunder without causing a violation of any third party rights; (c) it has obtained the written consent, release, and/or permission of each and every identifiable individual person depicted in the Menu Content sufficient for use thereof as contemplated hereunder without causing a violation of any third party rights; and (d) the Menu Content will not violate any applicable laws, rules or regulation. Customer hereby grants to Company a non-exclusive, worldwide, irrevocable, royalty-free right and license during the term of this Agreement to use, reproduce, modify, re-format, re-size, distribute, display, perform and transmit the Customer Content for purposes of: (i) providing the features and functionality of the Platform (including operation of the E-Commerce Site) and operating Company’s services; and (ii) for purposes of advertising, marketing and promoting (in any form of media) the Platform and the Company. Customer acknowledges and agrees that Company has no obligation to monitor, edit or verify the accuracy of any Customer Content and that, as between the parties, Customer is solely responsible therefor. Company reserves the right to remove any Customer Content from the E-Commerce Site which Company becomes aware may violate the terms of this Agreement, violate any law, rule or regulation or infringe, misappropriate or violate any third party Intellectual Property Right, privacy right or right of publicity.
Transactions. The Platform may facilitate Customer’s entry into Orders and other transactions with third parties. Customer acknowledges that any and all such Orders and other transactions are between Customer and the applicable Consumer or other third party, and that Company is not a party to any such transactions and does not perform any form of verification or monitoring of the existence, creditworthiness, credentials, practices or ability to perform of any Consumer or other third party with which Company may transact in connection with the Platform.
Compliance. Customer represents and warrants that: (i) it has all necessary licenses and permits of any kind and nature necessary for the conduct of its business; (iii) it and its personnel shall comply with all applicable federal, state and local laws, ordinances and codes and all lawful orders, directives, rules and regulations thereunder (collectively "Laws") in connection with this Agreement, including without limitation all environmental, safety, security, hygiene, health, water quality, and sanitation standards promulgated by any lawful and relevant authority that are applicable to Customer’s business, including as such Laws may be modified from time to time; (iv) it shall promptly notify Company of any actual or alleged breach of such Laws by Customer or Customer’s loss of any license or permit required for Customer to conduct its business, and (v) it currently maintains and shall maintain during the term of this Agreement commercial general liability insurance with coverage levels appropriate given the scope of Customer’s business.
Indemnity. Customer agrees to indemnify, defend and hold Company and its officers, directors, employees and agents harmless from and against any claims, demands, suits, damages, settlements, judgments, liabilities, losses, expenses (including reasonable attorneys fees) and costs (collectively, “Claims”) arising out of or relating to (i) Customer’s use of the Platform, the fulfillment or non-fulfillment of Orders, the sale of any products or services by Customer or any transactions or interactions between Customer and any third party (including a Consumer), including without limitation Claims relating to death, personal injury or property damage; and (ii) any alleged breach by Customer of this Agreement, other than in each case the extent to which the Claim arises directly out of the Company’s gross negligence or willful misconduct.
Third Party Transaction Services Provider. Use of certain Platform features, including the ability to publish and operate an E-Commerce Site, requires Customer to open and maintain an account with Stripe Inc. (“Stripe”) for payment processing services. Customer agrees to connect Customer’s Stripe account to the Company’s Stripe account through Stripe’s “Connect” platform. Customer acknowledges that by doing so, Customer agrees to be bound by applicable Stripe terms and conditions, including the Stripe Connected Account Agreement at https://stripe.com/connect/account-terms. Customer acknowledges that Company constitutes a “Connect Platform” under the Stripe Connected Account Agreement.
Information. Customer agrees to provide all information requested by Company and/or Stripe in connection with enabling payment processing for Customer, verifying Customer’s identity, satisfying IRS reporting obligations and complying with any legal or compliance requirements, including but not limited to Customer’s bank account and routing numbers and Tax ID or Social Security Number. Customer shall promptly notify Company and/or Stripe of any change or update to any information previously provided to Company and/or Stripe (as applicable). Customer acknowledges that Company may provide Customer’s transaction activity reports relating to the Platform to Stripe upon Stripe’s request.
Modifications. Company may from time to time change the third party payment processing service provider identified in Section 4.1 upon written notice to Customer. In such event Customer acknowledges that, as a condition of continued use of relevant features of the Platform, Customer shall be required to: (i) agree to different terms and conditions applicable to such third party service provider, (ii) agree to a modified version of this Agreement and (iii) provide all information and take such other actions as are required by the applicable third party in order to receive payment processing services. In the event Customer is at the relevant time using Platform features which require third party payment processing services and does not wish to comply with the foregoing requirements, Customer may, as its sole remedy and Company’s exclusive liability, terminate this Agreement upon written notice to Company.
Liability. Customer acknowledges that Company is not a party to Customer’s agreements with Stripe and that Company is not an affiliate of Stripe. Customer acknowledges and agrees that Company does not control Stripe or its performance of payment processing services for Customer, and that Company shall have no liability of any kind to Customer for any act or omission (including negligence) of Stripe or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by Customer in relation to the performance or non-performance of payment processing services by Stripe, other than to the extent to which any of the foregoing may directly arise from the gross negligence or willful misconduct of Company.
Transaction Data. As between the parties, Customer shall own the Transaction Data, subject to the licenses granted to Company herein. Customer hereby grants Company a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Transaction Data as is reasonably necessary or desirable for Company’s operation of the Platform and as otherwise authorized herein. Company may use and disclose Transaction Data as follows: (i) Company may use Transaction Data for Company’s internal business purposes (such as analyzing usage of and developing and improving Company’s products and services); (ii) Company may disclose Transaction Data to its third party service providers that assist it in making the Platform available as is reasonably necessary for such assistance; (iii) Company may disclose Transaction Data as may be required by law or legal process; (iv) Company may disclose Transaction Data where it is aggregated with data unrelated to Customer and Customer is not identified; and (v) Company may disclose Transaction Data as authorized by Customer.
Security. Customer acknowledges that: (i) the Platform uses the Internet for data transfer and Internet-connected servers to store Transaction Data and Customer Content; (ii) while Company uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) Internet communications have inherent insecurities. As such, Company does not represent or warrant the security of the Transaction Data.
FEES. By registering for any paid Platform account or any paid add-on features and providing payment information, Customer agree to pay Company the recurring and/or nonrecurring fees as displayed to Customer at the time of submission of the Registration Form and as may be modified from time to time as described in this Section 6, as well as any other fees Customer chooses to incur through the Platform user interface. Other than to the extent otherwise specified within the Registration Form at the time of submission, recurring Platform subscription fees will be charged in advance immediately prior to the applicable subscription period. Customer acknowledges and agrees that the payment instrument provided by Customer to Company will be automatically charged all fees incurred in connection with use of the Platform, and Customer represents and warrants that it has all necessary rights relating to such payment instrument to authorize Company to make such charges. Customer’s use of the Platform may be suspended if Company is unable to charge such payment instrument for any reason or if Customer’s account is otherwise past due. The fees applicable to Customer’s Platform account type may be subject to modification from time to time pursuant to notice (which may be given via email) provided by Company at least thirty (30) days in advance of the first payment date for which the modification would be effective. All fees must be paid in U.S. dollars and are non-refundable. Customer is responsible for any and all taxes associated with payments made to Company hereunder, other than taxes based on Company’s net income.
OWNERSHIP. As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by Company prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by Company after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Platform or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other compensation to Customer.
Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until terminated as set forth herein. Termination. Either party may terminate this Agreement at any time, for any reason or for nor reason, upon written notice to the other party, provided that any termination under this Section 8.2(a) shall be effective upon the end of the then-effective Platform subscription period for which Customer has pre-paid Company. Company may terminate this Agreement effective immediately if Customer breaches any obligation, representation or warranty hereunder. Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon termination of this Agreement, provided that Sections 1, 2.2 through 2.7, 3, 4.4, 5, 6, 7, 8.3, 10, 11 and 12 shall survive expiration or termination of this Agreement. Upon request by Customer to Company within thirty (30) days of termination of this Agreement and subject to payment of any applicable fees, Company shall within a reasonable time period make available to Customer for download such Transaction Data as Company has within its possession and generally makes available to its Platform customers post-termination, in a file format supported by Company.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM (INCLUDING ANY E-COMMERCE SITE PUBLISHED IN CONNECTION THEREWITH) WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT INFORMATION MADE AVAILABLE THROUGH THE PLATFORM WILL BE ACCURATE, CURRENT OR COMPLETE. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM. COMPANY WILL HAVE NO LIABILITY FOR ANY UNAUTHORIZED ACCESS TO OR USE OF THE COMPANY’S SERVERS THAT MAKE THE PLATFORM OR ANY E-COMMERCE SITE AVAILABLE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY.
CONFIDENTIALITY. Customer shall keep confidential all information and materials provided or made available by Company that are marked as confidential or proprietary or that Customer should reasonably recognize as such due to its content and/or the circumstances surrounding its disclosure (“Confidential Information”). Without limitation, the features, functionality and content of the Platform, any Platform documentation, and any information regarding planned modifications or updates to the Platform or other Company products and services constitutes Confidential Information of Company. Customer shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with Customer’s own confidential information, but in no case less than a prudent and reasonable standard of care. Customer shall not disclose Confidential Information to any third party except as expressly authorized by Company. Customer shall not use Confidential Information other than for purposes of performing its obligations hereunder or as expressly authorized by Company. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of Customer, (ii) known to Customer without restriction prior to the time of disclosure by Company, or (iii) lawfully and rightfully disclosed to Customer by a third party on a non-confidential basis. In addition, Customer shall not be in breach of this Agreement with respect to any disclosure required by law or legal process, provided that Customer promptly provides notice to Company of such request or requirement so Company may seek appropriate protective orders. If Customer, its employees or agents breaches or threatens to breach the obligations of this Section 10, Company may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF (I) TEN U.S. DOLLARS AND (II) THE TOTAL FEES PAID BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.
Electronic Communications. Customer hereby consents to receiving communications from Company electronically in connection with this Agreement and use of the Platform, including without limitation legal and regulatory disclosures and communications, notices of disclosures about an Amendment (as defined below) and privacy policies and notices. Company will communicate with Customer by e-mail or by posting notices in the Platform user interface. Customer agrees that all agreements, notices, disclosures, and other communications that Company provides to Customer electronically satisfy any legal requirement that such communications be in writing. In order to receive, access and view electronics communications from Company, Customer must have a valid e-mail account and software that can be used to access it, access to the Company’s website from which the Platform is accessible, software that can view PDF files and all computer hardware, software (including a compatible web browser) and Internet connectivity necessary to access and use the foregoing. It is Customer’s responsibility to keep Customer’s Platform account e-mail address up-to-date so that Customer is able to receive electronic communications from Company. Customer represents that Customer’s computer hardware and software meets the above requirements and that Customer has provided Company with a valid and current e-mail address at which Company may send Customer electronic communications. Customer may update Customer’s contact information from within the Platform user interface if Customer’s e-mail address changes. Notwithstanding Customer’s agreement and consent to exchange information with Company electronically, Company reserves the right to provide Customer, and the right to require Customer to provide Company, with a written or paper version of any communication in addition to or instead of the electronic copy thereof in Company’s discretion or as the law may require. Company also reserves the right to discontinue provision of communications electronically at any time, or to terminate or change the terms and conditions on which Company provides electronic communications (provided that Company will give Customer with prior notice of such termination or change as required by law). Customer may request a paper record of any electronic communication Company provided to Customer within a reasonable time period of such provision by e-mailing Company at email@example.com, provided that Customer must provide Company with all mailing address information Company requests and the provision of such paper record may be subject to payment of a fee where allowed under applicable law. If Customer at any time wish to withdraw this consent, Customer may e-mail Company at firstname.lastname@example.org, provided that Customer acknowledges that such action shall constitute a termination of this Agreement and result in the termination of Customer’s Platform account and ability to use the Platform. Customer acknowledges and agrees that Customer’s consent under this Section 12.1 is being provided by Customer in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (the “ESIGN Act”), and that Customer and Company both intend that the ESIGN Act apply to the fullest extent possible to validate Company’s ability to conduct business with Customer by electronic means.
Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
Third Party Beneficiaries. Nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Company. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of Customer or similar transaction shall be deemed to constitute an attempted assignment of this Agreement. Company may freely assign this Agreement. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
Force Majeure. Company will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, epidemic, pandemic, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
Notices. All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to (with respect to Company) the Company address set forth at Company’s website at http://www.meallogix.com and (with respect to Customer) to Customer’s address set forth in the Registration Form. Notices shall be sent to the attention of the “Legal Department” of each party. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
Amendments. Company may make modifications, deletions and/or additions to this Agreement (“Amendments”) at any time. Amendments will be effective: (i) thirty (30) days after Company provides notice of the Amendments, whether such notice is provided through the Platform user interface, is sent to the e-mail address associated with Customer’s account or otherwise; or (ii) when Customer opts-in or otherwise expressly agrees to the Amendments or a version of this Agreement incorporating the Amendments, whichever comes first. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement. No Amendment shall be effective unless promulgated by Company as set forth in this Section 12.7 or reflected in a written instrument that expressly states it is amending this Agreement and is executed by authorized representatives of both parties.
Construction. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
Severability; Waiver. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in San Diego County, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.