End User Subscription Terms
These End User Subscription Terms (the “Terms”) are entered into by and between Vertify, Inc., a Delaware corporation (“Vertify”) and the person or entity set forth in the applicable Order (such person or entity, “Customer” and, together with Vertify, the “Parties” and, each, a “Party”). These Terms shall be effective on the earlier of (i) the date the initial Order is entered into or (ii) when Customer first accesses the Service (the “Effective Date”).
BY REGISTERING FOR AND/OR ACCESSING, USING, OR SUBSCRIBING TO USE THE SERVICES, ENTERING INTO AN ORDER, YOU REPRESENT AND WARRANT THAT YOU HAVE: (i) ALL NECESSARY RIGHTS AND AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF CUSTOMER AND (ii) READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS ON CUSTOMER’S BEHALF. THESE TERMS MAY BE MODIFIED BY VERTIFY AT ANY TIME BY UPDATING AND POSTING A NEW VERSION ON OUR WEBSITE OR BY OTHERWISE NOTIFYING YOU OF THE REVISED TERMS. BY SUBSEQUENTLY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE VERSION OF THE TERMS IN FORCE DURING SUCH USE.
1. Scope. These Terms shall govern Customer’s use of Vertify’s transactional services, subscription services, professional services, implementation services, integration services, linked pages, content, products and offline components (each, a “Service” and, collectively, the “Services”) identified in one or more ordering documents signed by the Parties, including any exhibits thereto (each, an “Order” and, collectively, the “Orders”). These Terms and all
outstanding Orders (collectively referred to as the “Agreement”) represent the Parties’ entire understanding regarding the Services and shall, unless and to the extent modified through a written agreement signed by both Parties, control over any different or additional terms of any purchase order or other non-Vertify ordering document, and no terms included in any such purchase order or other non-Vertify ordering document shall apply to the Services. In the event of a conflict between these Terms and an Order, the terms of the applicable Order shall control to the extent of such conflict. All capitalized terms not defined herein shall have the meanings attributed in the Order.
2. Right to Use the Services.
2.1 During the subscription term set forth in an Order, as renewed pursuant to Section 6.1 (the “Subscription Term”), Vertify grants to Customer, a non-transferable (except by assignment as provided herein), non sublicensable, non-exclusive, worldwide right to permit those individual employees, agents or contractors authorized by Customer or on Customer’s behalf (“Users”) to access and use the Services identified in the applicable Order for Customer’s internal business purposes subject to the terms of the Agreement; provided, that, with respect to any professional services, implementation services or integration services set forth in an Order (collectively, “Professional Services”), Customer has the right to receive such Professional Services only for the period of time set forth in the applicable Order. Notwithstanding the foregoing, if Customer is identified as an “agency” in the applicable Order, Customer may use the Services in furtherance of providing services to its clients; provided, however, in no event shall Customer resell, sublicense, distribute or otherwise make the Services directly available to third parties.
2.2 The Services are provided by Vertify from a data center facility to which Users have remote access via the Internet in conjunction with certain offline components provided by Vertify hereunder. Each Order defines specific usage rights (the “Usage Rights”), and Customer shall at all times ensure that its use does not exceed such Usage Rights.
2.3 Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, “Equipment”). Customer shall ensure that Equipment
complies with all configurations and specifications set forth in Vertify’s published documentation, as the same may be updated or amended by Vertify from time to time.
3. Usage Restrictions and Representations.
3.1 Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) make the Services available to any person other than the Users; (iii) modify, translate, or create derivative works based on the Services or Software or copy (except for archival purposes), rent, lease, use as a distribute, pledge, assign (except as otherwise provided herein), or otherwise transfer or encumber rights to the Services or Software; (iv) use or access the Services to build or support, and/or assist a third-party in building or supporting, products or services competitive to Vertify; (v) remove, modify or obscure any proprietary notices or labels from the Services or Software; or (vi) use the Services for any purpose not contemplated in the Agreement or for any purpose that is not permissible under applicable law. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third-party.
3.2 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Vertify’s provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer’s account access passwords. Customer and Vertify agree to make every reasonable effort to prevent unauthorized third-parties from accessing the Services. Customer shall cause all of its Users to comply with the terms and conditions of this Agreement that are applicable to Customer and shall be solely liable for all acts and omissions of its Users.
3.3 If Vertify will be providing Professional Services, Customer agrees to promptly provide Vertify with all access credentials and other rights to access Customer’s information technology systems, applications and data, in each case as Vertify may reasonably request in connection with providing such Professional Services. Customer acknowledges and agrees that any failure to promptly provide such credentials or other rights may delay Vertify’s ability to provide such Professional Services, and Vertify shall have no liability to Customer for any delay caused, in whole or in part, by Customer’s failure to promptly provide such credentials. Customer further represents and warrants that it has all necessary rights and privileges to authorize Vertify to provide Professional Services to the extent contemplated in an Order, and that Vertify’s provision of such Professional Services shall not cause Vertify to incur any fees, fines or licensing charges assessed by any third-party information technology vendor of Customer. Without limiting the generality of the foregoing, Customer represents, warrants and covenants that it has provided all necessary notices and obtained all necessary consents for Vertify to access Customer Data in connection with providing Professional Services.
4.1 As between the Parties, Vertify retains all right, title and interest in and to the Services, the Software (including all derivatives or improvements thereof) and all intellectual property rights in the foregoing. All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other Party relating to the Services or Software shall be owned by Vertify, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Vertify.
4.2 As between the Parties, Customer retains all right, title and interest in and to any data, information or material originated by Customer that Customer submits or compiles in the course of using the Services (“Customer Data”). Vertify has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data.
4.3 To the extent that Vertify processes any Personal Information (as defined in the DPA) contained in the Customer Data that is subject to the GDPR (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum at vertify.com/dpa (the “DPA”), which are hereby incorporated by reference, shall apply, and the Parties agree to comply with such terms. The Parties hereby agree that, by entering into an Order and agreeing to these Terms, the Parties will be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses attached thereto and their Appendices.
4.4 The Parties acknowledge and agree that the Services may, from time to time, enable Customer to submit requests or orders for data pertaining to third parties with whom Vertify does not have a direct relationship (such data, “Third Party Data”). To the extent Vertify provides any such Third Party Data to Customer, Customer acknowledges and agrees not to further sell such Third Party Data or to otherwise use such Third Party Data in a way that violates applicable laws. Customer further acknowledges and agrees that Customer shall only use Third Party Data during the Subscription Term and shall not retain or use any Third Party Data following expiration or termination of the Subscription Term. As between Vertify and Customer, Vertify shall retain all right, title and interest in and to the Third Party Data except for the limited use right granted to Customer in this Section 4.4. Customer further agrees not to request any such Third Party Data pertaining to individuals that are less than sixteen (16) years of age. Customer agrees to indemnify and hold Vertify and each of its affiliates and its and their respective officers, directors, employees and agents harmless from and against any claim by a third party or governmental authority alleging that Customer’s use of Third Party Data, or Vertify’s provision of Third Party Data to Customer, violates (I) applicable laws, rules or regulations pertaining to such Third Party Data or (II) the rights of privacy of any such person.
5. Billing and Payment.
5.1 Customer shall pay all fees set forth in an Order. All fees are non-cancelable and non-refundable, except as expressly specified in Section 7.2 of these Terms or as specified in an Order. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be solely responsible for payment of all such taxes, levies, or duties (excluding U.S. taxes based on Vertify’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the Parties.
5.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
5.3 If at any time Vertify determines that Customer is exceeding the Usage Rights, Vertify shall notify Customer, and Customer shall either promptly bring its usage within the limits of such Usage Rights or notify Vertify of its disagreement with a finding of nonconformance with Usage Rights. If Customer fails to do so within 30 days of receipt of Vertify’s notice, Vertify reserves the right to charge, and Customer agrees to pay, Vertify’s then-current usage fees for such overage; provided, however, that the Parties have first attempted in good faith to resolve a disagreement of a finding of nonconformance with Usage Rights.
5.4 Customer understands and agrees that unless otherwise agreed in an Order, Vertify may increase the fees for any Renewal Term (as defined in Section 6.1) by up to six percent (6%) upon written or electronic notice,
including through the Services, at least sixty (60) days prior to the commencement of the applicable Renewal Term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at Vertify’s applicable list price in effect at the time of the applicable renewal.
6. Term and Termination.
6.1 The Agreement shall commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, and shall remain in effect through the end of the initial subscription term set forth in the applicable Order. Following expiration of the initial subscription term, this Agreement shall automatically renew for subsequent one (1) year terms (each, a “Renewal Term” and, together with the initial subscription term, the “Subscription Term”), unless Customer provides (30) days’ prior written notice of non-renewal to Vertify. Any renewal of the Agreement shall be subject to pricing changes as set forth in Section 5.4. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.2 In the event of a material breach by either Party, the non-breaching Party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching Party specifying the breach in detail. Notwithstanding the foregoing, Vertify may immediately suspend Customer’s password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Vertify has provided Customer with notice of such failure; or (ii) Customer violates Section 2.1, 3, or 9 of these Terms. Any suspension by Vertify of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement. If Vertify terminates an Order for Customer’s material breach, all fees set forth on such Order are immediately due and payable. If Customer terminates an Order for Vertify’s material breach, Customer shall be entitled to an immediate refund of any pre-paid fees for Services not used by Customer.
6.3 Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer’s request if received within 30 days of termination of the Order, Vertify will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Vertify’s possession. Customer acknowledges and agrees that Vertify has no obligation to retain Customer Data and that Vertify may irretrievably delete and destroy Customer Data and Customer Confidential Information after 30 days following the termination of the Agreement.
7. Representations, Disclaimer of Warranties, Indemnities.
7.1 Each Party represents and warrants to the other Party that it has the necessary power and authority to enter into the Agreement. Vertify warrants to Customer that (a) Vertify will provide the Services substantially in accordance with its documentation under normal use; (b) Vertify will provide the Services in a manner consistent with generally accepted industry standards; (c) the Software will perform substantially in accordance with the documentation; and (d) Professional Services will be performed in a good and workmanlike manner using personnel possessing requisite training and knowledge to perform such Professional Services. Customer must notify Vertify of any warranty deficiencies within 30 days of becoming aware of such deficiency in order to receive warranty remedies.
7.2 For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services or correction of the non-conforming Software. If Vertify cannot re-perform such deficient Services or bring the software to conformance as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Vertify for such deficient Services from the date from which the Services and/or software was non
conforming, and such refund shall be Vertify’s entire liability. In such instance, the Agreement shall be deemed terminated effective immediately.
7.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Vertify’s reasonable control, but Vertify shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services and shall make reasonable efforts to avoid unavailability of Services during normal business hours.
7.4 Vertify shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any judgements (“Claims”) made or brought against Customer by a third-party (a) alleging that Customer’s use of the Services or Software as contemplated hereunder infringes the intellectual property rights or privacy rights of, or has otherwise harmed, a third-party or violates any law or regulation or (b) arising from a breach by Vertify of its obligations under the Agreement; provided, that Customer (a) promptly gives written notice of the Claim to Vertify; (b) gives Vertify sole control of the defense and settlement of the Claim (provided that Vertify may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Vertify, at Vertify’s cost, all reasonable assistance. Vertify shall have no liability for any claim based on (i) the Customer Data; (ii) any use of the Services or Software in conjunction with anything, including data, equipment or software, not provided by Vertify or otherwise specified by Vertify in writing; (iii) use of the Services or Software in a manner not described in this Agreement or in any documentation supplied to Customer; (iv) any modification to the Services or Software not made or authorized in writing by Vertify; (v) any modification to the Services or Software made at the written request of Customer; or (vi) use of the Services or Software in a manner prohibited pursuant to Section 3.1. In the event of any such third-party infringement, Vertify may, at its sole option and expense, (x) procure for Customer the right to continue use of the Services and Software, (y) modify the Services or Software to be non-infringing in a manner that does not materially impair the functionality of the Services or Software or (z) terminate this Agreement and repay Customer a pro-rata portion of the pre-paid but unused with respect to the remainder of the Subscription Term following the termination date.
Customer shall defend, indemnify and hold Vertify harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Vertify by a third-party (a) alleging that Customer Data, or Customer’s use of the Services, including is provision of the Customer Data, infringes the intellectual property rights or privacy rights of, or has otherwise harmed, a third-party or violates any law or regulation or (b) arising from a breach by Customer of its obligations under the Agreement; provided, that Vertify (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Vertify of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
7.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, VERTIFY AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. VERTIFY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VERTIFY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER VERTIFY NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VERTIFY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY
PROVIDED OTHERWISE BY VERTIFY, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
8. Limitation of Liability. EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS, INDEMNIFICATION OBLIGATIONS, OR BODILY INJURY OR DEATH, NEITHER PARTY OR ITS THIRD PARTY LICENSORS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS OR USE); (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) , EXEMPTING VERTIFY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF VERTIFY’S OBLIGATION OF CONFIDENTIALITY, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $500,000 OR THE FEES PAID BY CUSTOMER IN THE PRECEDING 12 MONTHS;. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply.
9. Confidential Information. Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s login identifiers and credentials for Users and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person, other than the Receiving Party’s employees, contractors, agents and service providers, any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of its own; (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third-party; or (d) was independently developed without use of or reliance upon any Confidential Information of the Disclosing Party. The foregoing shall not restrict the Receiving Party from disclosing any Confidential Information to the extent required by law; provided, however, that, to the extent permissible under applicable law, the Receiving Party provides to Disclosing Party prior notice of the intended disclosure, permits Disclosing Party to intervene therein to protect its interests in the Confidential Information, and provides full cooperation and assistance to Disclosing Party, at the Disclosing Party’s expense, in seeking to obtain such protection. The foregoing confidentiality, non-disclosure and non-use restrictions shall remain in full force effect throughout the Subscription Term and for a period of five (5) years thereafter; provided, however, that such obligations shall remain in full force and effect thereafter with respect to any Confidential Information that constitutes and remains a trade secret of the Disclosing Party.
10. Freemium Services. Notwithstanding anything to the contrary in this Agreement, Vertify may, from time to-time and in its sole discretion, make available to Customer free trials of Services or “freemium” versions of limited Services (collectively, “Freemium Services”). In such cases, Vertify reserves the right to modify or cancel adjust such Freemium Services from time-to-time in its sole discretion upon advance notice to Customer. FREEMIUM SERVICES ARE OFFERED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND VERTIFY ASSUMES NO RISKS, INDEMNITY OBLIGATIONS OR LIABILITIES TO CUSTOMER IN CONNECTION THEREWITH. FOR CLARITY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (A) VERTIFY MAKES NO REPRESENTATION OR WARRANTY, INCLUDING THOSE SET FORTH IN SECTION 7.1, WITH RESPECT TO THE FREEMIUM SERVICES AND (B) VERTIFY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS TO CUSTOMER WITH RESPECT TO FREEMIUM SERVICES,
INCLUDING UNDER SECTION 7.4. WITH RESPECT TO THE FREEMIUM SERVICES, VERTIFY’S AGGREGATE LIABILITY TO CUSTOMER SHALL BE LIMITED TO $100.
11. Statistical Information. Notwithstanding anything to the contrary in this Agreement, Vertify may monitor Customer’s use of the Services and may compile and use, for any lawful purpose, Customer Data in an aggregate and anonymous manner as well as statistical and performance information related to the provision and operation of the Services, and may, to the extent permissible under applicable laws, make such information publicly available, provided that such information does not incorporate any disaggregated or identified Customer Data and/or identify Customer’s Confidential Information. Vertify retains all intellectual property rights in such information.
12. Notices. Vertify may give notice applicable to Vertify’s general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by email communication sent to Customer’s email address on record in Vertify’s account information. If Customer has a dispute with Vertify, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Vertify at 411 W Monroe St. #40, Austin, TX 78704, U.S.A.
13. Force Majeure. Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other subscription); epidemic, pandemic or other public health crisis, or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either Party may cancel unperformed Services upon written notice. This section does not excuse either Party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided, except in the event of cancellation of unperformed Services as provided herein, in which case Customer is entitled to pro-rata refund of any pre-paid unperformed services.
14. General provisions.
14.1 Any action, Claim, or dispute related to the Agreement will be governed by Texas law, excluding its conflicts of law provisions. The Uniform Computer Information Transactions Act will not apply to the Agreement. Any legal action or proceeding relating to the Agreement shall be brought exclusively in the state or federal courts located in Austin, Texas, and the Parties unconditionally and irrevocably consent to such venue. In any action or proceeding to enforce rights under the Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees. The failure of either Party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
14.2 The Agreement and all Order(s) or other documents mutually agreed upon by the Parties in writing, represent the Parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order by fax or electronic signature shall be sufficient to bind the Parties to the Terms and such Order. The Agreement may be amended only by written agreement of the Parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.3 This Agreement is an agreement between the Parties and confers no rights upon either Party’s employees, agents, contractors, partners or customers or upon any other person or entity.
14.4 No joint venture, partnership, employment, or agency relationship exists between Vertify and Customer as a result of the Agreement or use of the Services. Neither Party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such
approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.
14.5 This Agreement will be binding upon and for the benefit of Vertify, Customer and their permitted successors and assigns. Either Party may assign this Agreement to its affiliates and as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or business to which this Agreement relates. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void.