TESHA SYSTEMS dba HEARTS4FRIENDS MASTER SERVICES AGREEMENT
This Hearts4Friends Master Services Agreement and any Attachments or Addenda (“Agreement”) is made effective as of the agreement date (“Effective Date”) by and between Tesha Systems LLC dba as Hearts4Friends, a Colorado limited liability company (“Hearts4Friends”) and a. _user___________________________________ (“Customer”) (collectively “Parties”). References to Hearts4Friends, Customer or the Party will include (i) any agent or representative, and (ii) any entity that controls, is controlled by, or is under common control with, such Party, including, but not limited to, having the ability to elect a majority of the governing body (“Affiliate”).
RECITALS
A. Hearts4Friends is a provider of a cloud-based social media platform and who desires to provide such services to Customer.
B. Customer is a user______________________, who desires to consume services provided by Hearts4Friends.
NOW, THEREFORE, the Parties agree as follows:
1.
Customer/user agrees to maintain and post socially and ethically acceptable on the Hearts4friends platform for all associated notifications and communications. Customer/user also agrees that any posts and media communications distributed belongs to Hearts4Friends and customer/user will not be compensated for such materials.
2. SERVICES
2.1 Services. Hearts4Friends will provide User/Customer a platform to post and share information with other parties, including associated applications and content (“Traffic”), as services are available, in a commercially reasonable manner consistent with industry standards and the terms of this Agreement. Nothing in this Agreement will inhibit the right of Hearts4Friends to deploy, upgrade, migrate and maintain its network or Services in its sole discretion.
2.2 Interconnection. Customer is responsible for obtaining and paying for any facilities to interconnect with Hearts4Friends. Either party will have no responsibility or liability related to the other Party’s facilities or networks under any circumstances.
2.3 Network and Traffic Integrity.
2.3.1 Hearts4Friends reserves the right, in its sole discretion, to temporarily suspend any Services or accounts if Hearts4Friends reasonably suspects that Customer is engaged in unethical, illegal, illicit, dangerous or morally unacceptable activity, which may potentially disrupt or cause mental, psychological, or physical harm to the Hearts4Friends’s social media community or its network and facilities. Hearts4Friends will use commercially reasonable efforts to provide advance written notice of suspension except when terms of this agreement are violated.
2.3.2 Hearts4Friends provides its Services subject to the condition that Customer will not use the Services for any unlawful purposes. Hearts4Friends reserves the right, in its sole discretion, to temporarily suspend or permanently terminate any Services, in whole or in part, and initiate any other appropriate action to minimize risk of fraud and protect Customer and Hearts4Friends, if Hearts4Friends determines or reasonably suspects: (i) fraud, abuse or misuse on Customer’s account;
2.3.4 Customer agrees to assume sole responsibility for any and all messages, posts, media content, or information sent from Customer’s connection to Hearts4Friends, including without limitation any instances in which a third party hacks into Customer’s network to send traffic to any destinations with increased risk of fraudulent traffic. To mitigate the risks associated with such events, Customer will notify Hearts4Friends immediately of any unauthorized use of
Customer account or other breach of security.
2.4 Disputes. if Party does not file a legal action, claim or lawsuit (“Claim”) relating to this Agreement within one (1) year from the occurrence of the activity giving cause to the Claim, such Party is deemed to have waived all rights associated with the Claim; provided that this limitation does not change any right to enforce against any repeated or continuing activity being disputed. Prior to filing any such Claim, the aggrieved Party will submit a formal written notice of any dispute with sufficient detail and documentation regarding the nature and timing of the dispute to efficiently resolve the dispute. If the Parties cannot reach a resolution within thirty (30) days of a formal dispute being filed using commercially reasonable efforts, the dispute will be escalated to a representative from each Party for an additional thirty (30) days. If the Parties cannot resolve a dispute through this informal dispute resolution after sixty (60) days, a Party may submit the dispute for binding arbitration with a sole arbitrator in accordance with the rules established by the American Arbitration Association (“AAA”). The Parties agree that the only circumstances in which a dispute will not be subject first to arbitration are where: (i) Hearts4Friends seeks to collect any amounts due from Customer subject to the deemed consent set forth in Section 4.6; (ii) a Party makes a good faith determination that a breach of this Agreement by the other Party is such that a temporary restraining order or other injunctive relief is the only appropriate and adequate remedy; or (iii) a Party seeks to exercise the right to enforce the judgment. The Parties agree to conduct all arbitrations in Denver, Colorado, unless the Parties mutually agree otherwise. The Parties agree that the arbitrator will be knowledgeable about the subject matter of the Dispute, will control the scheduling so as to process the matter expeditiously, and will only have the authority to make decisions permitted by the terms of this Agreement, including without limitation any limitations of liability of the Parties. The decision of the arbitrator will be final and binding on all parties, may only be appealed for mistakes of law, and will be entered in any court having jurisdiction for rendering of judgment.
3. TERM AND TERMINATION
3.1 Term. This Agreement will commence on the Effective Date and will continue for an indefinite period unless the terms of agreement and acceptable use policy is violated by the user/customer
3.2 Events of Termination. Each Party will have the right to immediately terminate this Agreement without liability if the other Party: (i) fails to cure a material breach of this Agreement after expiration of all applicable notice and cure periods, which will be thirty (30) days after written notice if not otherwise set forth herein; or (ii) ceases to be actively engaged in business or becomes financially incapable of fulfilling its obligations under this Agreement. Termination under this Section will be a nonexclusive remedy for breach without prejudice to any other right or remedy of such Party, and will have no effect on Customer’s payment obligations.
3.4 Survival. The rights and obligations, which by their nature should survive the Agreement, will survive termination or expiration of this Agreement.
4. RATES, CREDIT AND BILLING TERMS (Applicable only for Commercial Agreements)
4.1 Credit. Prior to delivery of Services, Hearts4Friends will conduct a credit review of Customer to verify creditworthiness and establish a credit limit. From time to time as may be warranted by increased volume of business, payment history, or any other reason, Hearts4Friends may, at its sole discretion, modify the credit limit or require certain form(s) of security from Customer to continue Services, including without limitation prepayment. Customer will be notified by Hearts4Friends if prepayment is required. Upon notice, Customer must make payments in advance of receiving Services and is required to maintain sufficient funds in its account(s) to continue receiving Services. If funds in Customer’s account are nearing depletion, Hearts4Friends, at its sole discretion, may suspend or restrict Service without notice or liability. Customer may replenish the prepayment balance at any time, upon which Hearts4Friends will reinitiate Services when the funds have been received by Hearts4Friends.
4.3 Billing Terms. On the issuance date of the Service Activation Notice,
Hearts4Friends will initiate billing for the Services pursuant to the terms of the applicable Attachment(s). Customer will be responsible for all undisputed charges on its account after the Service Activation Notice, unless Customer exercises its Satisfaction Guarantee. Hearts4Friends will bill Customer monthly for the applicable month of Services, either in advance or arrears as set forth in the applicable Attachment (“Invoice Date”).
4.4 Payment Terms. Undisputed amounts are due and payable thirty (30) days from the Invoice Date (“Due Date”), unless otherwise required in Section 4.2. Hearts4Friends will send each invoice from billing@Hearts4Friends.com to Customer’s email address in accordance with Section 1. Customer must make all payments by ACH electronic funds transfer, wire transfer, credit card, check, or PayPal to the account information provided by Hearts4Friends on each invoice. For all credit card payments, Customer agrees to (i) authorize Hearts4Friends to debit its account on any open balances, until the earlier of the termination of the Agreement or the cancellation of the authorization by Customer in writing to billingsupport@Hearts4Friends.com; (ii) not dispute any resulting authorized payment with the credit card company as long as the transaction corresponds with the terms of this Section; and (iii) hold Hearts4Friends harmless for any claims associated with the credit card transaction provided pursuant to the terms agreed upon with the independent third party payment provider.
4.5 Late Payments. Hearts4Friends reserves the right to impose a late payment charge on amounts not paid on or before the Due Date, in the amount of one and one-half percent (1.5%) per month compounded monthly, or the maximum rate allowable by law, whichever is less.
4.6 Disputed Invoices. Customer will provide written notice to billingsupport@Hearts4Friends.com of any disputed charge, including sufficient detail and documentation reasonably requested by Hearts4Friends to efficiently resolve the dispute (“Dispute Notice”), within sixty (60) days of the Invoice Date (“Dispute Period”). The Dispute Notice will not relieve Customer of its obligation to pay all undisputed amounts by the Due Date, and will not affect the termination or suspension rights of Hearts4Friends. If Customer does not provide the Dispute Notice within the Dispute Period, Customer will be deemed to have consented to the amounts charged on the invoice, and to have waived any right to dispute the invoice.
4.7 Taxes. Customer will pay all sales, use and excise taxes, as well as all regulatory surcharges, customs and duties assessed from any domestic or international jurisdiction due or payable upon the provision, sale or use of Services under this Agreement (“Taxes”). Unless Customer provides Hearts4Friends with sufficient written documentation, including, but not limited to, tax exemption certificates, reseller certifications, and copies of receipts of any such foreign taxes paid, Customer will be responsible for paying all applicable Taxes. In no event will Hearts4Friends be liable for any claims arising from, or in connection with, Customer’s failure to pay any taxes owed by Customer in any jurisdiction. Where taxes are based upon the location receiving the benefit of Services, Customer has the ongoing obligation to notify Hearts4Friends of locations if different than the Customer’s business address provided during the onboarding process, or if the location changes.
5. WARRANTY DISCLAIMER.
HEARTS4FRIENDS DOES NOT WARRANT THAT USE OF SERVICES OR ACCESS TO Hearts4Friends® PLATFORMS OR SYSTEMS WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, SERVICES OR SOFTWARE.
6. INDEMNIFICATION
6.1 Each Party will indemnify, defend and hold harmless the other Party and its officers,
directors, employees and agents, from and against any and all loss, damages finally awarded, settlement, costs or expense (including reasonable attorney’s fees and court costs) resulting from or arising out of any third party claim which: (i) arises from a material breach by the indemnifying Party of any obligation, representation or warranty under this Agreement; (ii) is related to any fine, fee or penalty for negligence, property damage, personal injury, product liability, misrepresentation, misuse, acts or omission arising from activities performed in connection with this Agreement by the indemnifying Party; or (iii) alleges that the Services or Traffic infringe, misappropriate or violate any patents, trademarks, copyrights or other intellectual property rights of persons, firms or entities who are not parties to this Agreement.
6.2 Exclusions. Hearts4Friends will have no obligations with respect to infringement of intellectual property to the extent any claim arises from Customer: (i) using Services in combination with data, products, programs, services or equipment not authorized by Hearts4Friends in writing; (ii) not complying with specifications or directions provided by Hearts4Friends; or (iii) failing to use replacement technology or services provided by Hearts4Friends to avoid an infringement claim. Customer agrees that any indemnification obligations of Hearts4Friends do not extend to any Open Source software used as part of the Services.
6.3 Notice and Assistance. Each Party will provide prompt written notice of any claim for which the other Party may have an indemnification obligation pursuant to Section 6, and will provide the other Party with reasonable assistance in defending such claim. The indemnifying Party will be liable to the indemnified Party for any costs or attorneys’ fees incurred by indemnified Party to establish or enforce these rights to indemnification under this Section 6.
6.4 SOLE REMEDY. THE FOREGOING ARE HEARTS4FRIENDS’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
7. LIMITATIONS OF LIABILITY
7.1 EXCEPT FOR LATE FEES PROVIDED FOR IN SECTION 4, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, LOST SALES, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES, OR ANY AMOUNT PREVIOUSLY EXPENDED IN CONNECTION WITH THIS AGREEMENT, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT, INCLUDING STRICT LIABILITY, EVEN IF THE HARMED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY UNDER THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
7.2 TOTAL LIABILITY. IN NO EVENT WILL HEARTS4FRIENDS’ AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS, ACTIONS, LIABILITIES OR EXPENSES ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS ACTUALLY RECEIVED BY HEARTS4FRIENDS FOR SERVICES DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT FROM WHICH LIABILITY AROSE, OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER AMOUNT IS LESS.
7.3 THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8. PROPRIETARY RIGHTS.
8.1 Intellectual Property Rights.
8.1.1 Definitions. For this Agreement, “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights; (v) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described in this Section 8.1(i), (ii), (iii), (iv) or (vi); and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing). For this Agreement, the “application programming interface” or “API” means the interface and related sample code, specifications, instructions and other documentation made available by Hearts4Friends for the purpose of enabling the Hearts4Friends technology, systems, software and solutions for the provision of Services.
8.1.2 No patent, copyright, trademark or other Intellectual Property Right is granted or otherwise transferred by this Agreement or any disclosure hereunder, except as expressly set forth in this Agreement. There are no implied licenses under this Agreement. The Parties acknowledge that, as between the Parties, and except for the rights expressly granted in this Agreement, all rights, title, and interest in the Intellectual Property Rights belonging to the respective Party held at the Effective Date (“Owning Party”), along with any subsequent modifications, improvements, inventions, discoveries and all associated Intellectual Property Rights, will remain the property of that Owning Party. For avoidance of doubt, the aforementioned modifications and improvements include any customization performed under a Statement of Work, unless the Statement of Work expressly allocates ownership of Intellectual Property Rights otherwise.
8.1.3 If either Party provides the Owning Party any suggestions, ideas, feedback, reports, error identifications or other information related to the Owning Party’s Intellectual Property Rights for the services, including the evaluation of services, within the scope of this Agreement (“Feedback”), the Party providing such Feedback hereby grants to the Owning Party a non-exclusive, worldwide, perpetual, irrevocable, non-terminable, royalty-free right and license, including the right to grant and authorize sublicenses, to use and otherwise exploit the Feedback for all purposes, and acknowledges that it is not entitled to any compensation of any kind under any circumstances for such Feedback.
8.1.4 Unless otherwise approved in advance and in writing by the other Party, neither Party will: (i) copy, rent, lease, sell, transfer, assign, sublicense, dissemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), derive, modify or alter any part of the Intellectual Property Rights, APIs, systems, servers, the source code of any software, or the safety controls belonging to the other Party; (ii) propagate any virus, worms, Trojan horses, defects, malware or other programming of a destructive nature intended to damage any system or data; (iii) disable or circumvent any security device, mechanism, protocol or procedure for, or otherwise interfere with or disrupt, the intellectual property, APIs, systems, servers or networks of the other Party; (iv) attempt to obtain the source code or algorithms of any software, systems or applications of the other Party or its underlying vendors; (v) use the intellectual property, APIs, systems, servers or networks of the other Party in any manner or for any purpose that may infringe on any Intellectual Property Rights or that differs from the purpose intended; or (vi) allow any of its users or customers to undertake any such activities set forth in subsections (i)-(vi).
8.2 Confidential Information.
8.2.1 Definition. The term “Confidential Information” will include any confidential and proprietary information of either Party or end users in any form, including but not limited to discussions, documents, papers, drawings, diagrams, discs, technology, procedures, systems data and other information of a confidential nature pertaining to, generated or disclosed by either Party in writing, electronically, computerized, orally or otherwise, which is (i) designated
“Confidential,” or a comparable legend, in written, graphic, machine readable or other tangible form, including but not limited to this Agreement, its terms, or any other agreement executed by the Parties; or (ii) other information without such designation, which by its nature the receiving Party should reasonably know is confidential, including without limitation the existence and terms of this Agreement, all financial details, investment plans, subscriber related data, price specifications, schemes, tariffs, technological configurations, know-how, software programs, techniques, scientific data and information relating to business, investments, trade secrets, transactions or affairs, services being rendered, plans for business investments or for improving services and discussions on future services, analysis, compilations, studies, summaries, extracts or other documentation.
8.2.2 Exceptions To Confidential Information Obligations. Confidential Information does not include information which the receiving Party can document: (i) is or becomes available to the public through no breach of any confidentiality obligations; (ii) was previously known by the receiving Party without any obligation to hold it in confidence and through no breach of any confidentiality obligations; (iii) is received from a third party free to disclose such information without restriction; (iv) is independently developed by the receiving Party without the use of or access to confidential or proprietary information of the disclosing Party; or (v) is approved for release by written authorization of the disclosing Party, but only to the extent of such authorization. The disclosing Party also expressly authorizes the receiving Party to disclose Confidential Information of the disclosing Party in response to either (a) a traceback request from the Industry Traceback Group on suspected illegal robocalling activity; or (b) a valid order or requirement of a court or other governmental body as is required by law or regulation, provided that the Party subject to such order or requirement gives reasonable notice to the other Party, as allowed by law, to contest such order or requirement at its own expense.
8.2.3 Use And Disclosure Restrictions On Confidential Information. With respect to any Confidential Information disclosed under this Agreement, the receiving Party agrees that it will: (i) copy, store, record, transmit, display, view, print, and use the Confidential Information only for the purpose of performance of this Agreement; (ii) hold the Confidential Information in confidence, exercising a degree of care but no less than a reasonable degree of care used by such Party to protect its own proprietary or confidential information; (iii) restrict disclosure of the Confidential Information to employees, representatives and agents of the receiving Party and its Affiliates with a “need to know” who have signed a written confidentiality agreement with the receiving Party containing terms no less restrictive than the terms this Agreement and not disclose it to any other person or entity without the prior written consent of the disclosing Party; (iv) advise those employees, representatives and agents who access the Confidential Information of their obligations; (v) copy the Confidential Information only as necessary for those employees, representatives and agents, and ensure that all confidentiality notices are reproduced in full on such copies; and (vi) adhere to any Data Processing Addendum incorporated by reference into this Agreement. For purposes of this Section, a representative will include any potential acquirers, merger partners, investors and their representative, attorneys, auditors, accountants and investment bankers, provided that such disclosure is conducted solely in connection with a review for due diligence or audit and that such disclosures are made in confidence.
8.2.4 Ownership. Each Party retains the right, in its sole discretion, to determine whether to disclose its Confidential Information to the other Party, and disclosure of information of any nature will not obligate the disclosing Party to disclose any further information. Upon request, the receiving Party will return to the disclosing Party all Confidential Information received in tangible form, or will destroy all such Confidential Information and certify in writing to the disclosing Party that all such information has been destroyed; provided that the receiving Party may retain copies of such materials to the extent required by applicable law or internal document retention purposes.
8.3 Publicity and References. The Parties acknowledge and agree that publication of information relating to this Agreement may occur through press releases, articles, interviews, marketing materials, online materials, or speeches (“Publicity”), upon written consent not to be
unreasonably withheld. The Parties expressly authorize all routine references to the fact that Customer is a customer of Hearts4Friends and the general nature of the Services that Customer purchases under this Agreement.
8.4 Access to the Hearts4Friends Systems. Customer is solely responsible for administering its user accounts and associated passwords (“Security Credentials”), and keeping its Security Credentials secure. Customer agrees to at least reasonable means to protect its Security Credentials from unauthorized disclosure or use by third parties. If Customer shares any Security Credentials with any third party, such as a sales partner, such third party will be acting on the Customer’s behalf as the Customer’s agent, and will be bound by this Agreement. Any arrangements between Customer and such third party are strictly between Customer and such third party. Hearts4Friends is not liable for such other third party’s access or actions, or any losses or damages resulting from unauthorized access or use of the Hearts4Friends systems as set forth in this Section. Customer agrees that Hearts4Friends may rely and act on all instructions received via our Hearts4Friends systems using the Security Credentials, and all transactions performed, even if not intended by Customer, are considered transactions authorized by the Customer. To mitigate the risks associated with such events, Customer will contact Hearts4Friends at support@Hearts4Friends.com as soon as reasonably possible if Customer becomes aware of any unauthorized access or use of its account, its Security Credentials or any other breach of security.
9. GENERAL PROVISIONS
9.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of Colorado without reference or application of conflict of law rules. The Parties consent exclusively and irrevocably to the jurisdiction and venue of any competent court in the state of Colorado for any legal action arising under this Agreement, and expressly waive any right to a jury trial or a class action lawsuit. The Parties agree that this Agreement will not be governed by the United Nations Convention on Contracts for International Sale of Goods.
9.2 Assignment. Customer may not assign this Agreement without prior written consent of Hearts4Friends, which will not be unreasonably withheld, except that Customer may assign the Agreement pursuant to any sale or transfer of substantially all of the business, subject to Hearts4Friends approving the credit of any surviving entity. The terms and conditions contained in the Agreement will bind and inure to the benefit of the Parties and their respective successor and assigns. Any attempt to assign this Agreement, without such consent, will be null and void.
9.3 Force Majeure. Except for Customer’s obligation to pay for Services rendered under this Agreement, neither Party will be responsible for any failure or delay in its performance under this Agreement, in whole or in part, due to causes beyond its reasonable control, including but not limited to: acts of God, fire, explosion, vandalism, earthquake or other natural occurrences; any law, order, regulation, action or request of any government entity; any civil or military authority; or any national emergencies, riots, or wars.
9.4 Attorneys’ Fees and Costs. In the event of any litigation or arbitration related to this Agreement, the prevailing party shall be entitled to all reasonable and documented attorneys’ fees, costs, and expenses relating to the matter regardless of whether the Agreement or any relevant provision is held to be invalid.
9.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect, if the essential provisions of this Agreement for each party remain valid, legal, and enforceable.
9.6 Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of any provision in this Agreement.
9.7 Change of Law. In the event, any federal or state legislative or regulatory body or a court of competent jurisdiction issues a law, rule, regulation, or decision changing any material
term of this Agreement, including, but not limited to, making a Service illegal or impractical on a commercially reasonable basis without unreasonable risk of liability, then upon thirty (30) days written notice Hearts4Friends may modify the affected terms of this Agreement to comply with the changes.
9.8 Applicable Law. Each Party will perform its obligations and assert its rights under this Agreement in accordance with all applicable laws and regulations. Each Party is solely responsible for obtaining all licenses, approvals and regulatory authorities necessary for its use or provision of any service associated with this Agreement.
9.9 Export and Import Regulations. Customer acknowledges that applicable laws and regulations of the United States and other foreign countries may restrict the export and re-export of certain commodities and technical data of United States origin, including the Services or associated software, and represents that Customer is not, and will immediately discontinue use of the Services and software were it to be, on any government exclusion list or under the control of or agent for any entity on such list.
9.10 Allocation of Risks. The Parties acknowledge and agree that each Party has entered into this Agreement in reliance on the limitations, disclaimers and indemnifications set forth herein, that such limitations, disclaimers and indemnifications reflect an allocation of risk between the Parties and form an essential basis of the bargain between the Customer and Hearts4Friends.
9.11 Entire Agreement. This Agreement, including any Attachment(s), constitutes the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements, communications or understandings, oral or written, relating to the subject matter in this Agreement. The rights and obligations of the Parties will inure to Affiliates and may be directly enforced by or against such Affiliates. Electronic signatures will constitute an original signed document as applicable. Except as otherwise set forth in this Agreement, any waiver or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the Parties. The Parties agree to read any Attachments or other addenda together with this Agreement to avoid inconsistent interpretations. However, in the event of irreconcilable conflicts between the terms of this Agreement and any other document, the order of precedence will be (i) any applicable Rate Notifications; (ii) the Attachments; and (iii) the Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date indicated below by their duly authorized representatives.
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