Terms and conditions


1. DEFINITIONS

1.1 ”Authorized User” means each of the individuals authorized to use the Services pursuant to Section 2.1 and the other terms and conditions of this Agreement.

1.2 ”Client Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an Authorized User by or through the Services and that is associated specifically with Client.

1.3 ”Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, source code for the Services; any other non-public source code of either party; and any non-public product, service, technical, marketing, business, financial, or other information.

1. 4 ”Hardware” means the sensors, base station, and/or any other hardware provided by Supplier to Client for use in connection with the Services under this Agreement.

1.5 ”Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.6 ”Resultant Data” means information, data and other content that is derived by or through the Services or from processing Client Data and is sufficiently different from such Client Data that such Client Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.

1.7 ”Service Software” means Supplier software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Supplier provides remote access to and use of as part of the Services.

1.8 ”Services” has the meaning set forth in Section 2.1.

1.9 ”Specifications” means the Order Form and, if any, manuals, documentation and other supporting materials related to the Services that Supplier generally provides to its clients.

1.10”Support” has the meaning set forth in Section 2.2.

2. SERVICES AND SUPPORT

2.1 Services. Subject to the terms of this Agreement and Client’s payment of all applicable Fees, during the Term, Supplier will provide to Client and its Authorized Users the services described in the Order Form and Section 2, and Section 4 this Agreement (collectively, the “Services”) in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Client and its Authorized Users in substantial conformity with the Specifications. The Services will be provided to Client at www.spiio.com/app.

2.2 Support. Subject to the terms of this Agreement and Client’s payment of all applicable Fees, during the Term, Supplier will provide Client with support in accordance with Supplier’s standard support offering. Support will be provided via support@spiio.com and/or www.spiio.com/support (“Support”) Supplier will use commercially reasonable efforts to respond to any support request within forty-eight (48) hours.

2.3 Suspension of Services. Supplier reserves the right to suspend and deactivate immediately Client’s access and use of the Services without notice in the event of a breach or threatened breach of the security or integrity of the Services or a violation or threatened violation of any restrictions or conditions in this Agreement, or as reasonably necessary for exigencies as determined by Supplier in its sole discretion. Supplier expressly disclaims any liability for such suspension. To the extent appropriate or feasible under the circumstances, Supplier will provide Client with an advance written notice of the suspension and will work to restore the Services as soon as practicable and with minimal disruption to Client’s operations.

2.4 Data Collection. The Services will collect the following data:

(A) Soil Moisture Data: Supplier will be collecting and logging soil moisture data with a capacitive soil moisture sensor. Supplier will be visualizing the data in a minimum spectrum of five (5) moisture categories: Dry, Medium Dry, Medium, Medium Wet and Wet.

(B) Temperature Data: Supplier will be collecting and logging data with an ambient temperature sensor placed in near proximity around either a greenwall section, potted trees or plants. Individual temperature measurements could vary according to the local environment at any given time.

(C) Light Data: Supplier will be collecting and logging data with its light sensor. The light sensor will be measuring the trend in light intensity. The light sensor will, due to its placement, only collect data if and/or when the sensor is not covered by plant growth.

2.5 Updates. Supplier reserves the right to implement new versions of, updates or upgrades to the Services, including, without limitation, modifications to the design, operational method, technical specifications, systems, and other functions of the Services, at any time and without prior notice to Client, unless otherwise specified in the Order Form.

3. DATA TERMS AND OWNERSHIP

3.1 Access. Subject to the terms of this Agreement and Client’s payment of all applicable Fees, during the Term, Client will have access to the Resultant Data relevant to Client via www.spiio.com/app.

3.2 Storage. Supplier will store and visualize such Resultant Data for the entire length of the Term.

3.3 Ownership & Cross-licenses. As between the parties, Supplier owns all right, titles and interest in Resultant Data, including any Intellectual Property Rights embodied in Resultant Data, and Supplier may use Resultant Data for any purposes. Supplier hereby grants to Client a non-exclusive license during the Term to use Resultant Data solely for internal business purposes. As between the parties, Client owns all right, titles and interest in Client Data, including any Intellectual Property Rights embodied in Client Data. Client hereby grants to Supplier an irrevocable, perpetual, worldwide non-exclusive, fully paid-up license to use Client Data solely (i) to provide the Services to Client and (ii) for Supplier’s internal purposes, such as to aggregate the data with other client data in order to gain insights into how to improve the Services.

4. HARDWARE TERMS AND OWNERSHIP

4.1 Provision. Subject to the terms of this Agreement and Client’s payment of all applicable Fees, Supplier will deliver to Client the Hardware leased by Client for use during the Term in connection with the Services under this Agreement. Client represents, warrants, and covenants that it will use the Services only with the Hardware. If Supplier installs any Hardware for Client, the parties agree to the additional Installation Terms set forth in Exhibit B.

4.2 Ownership. Hardware is leased for the Term, not sold to Client. Client fully understands and agrees that Client is not purchasing or holding title to any Hardware supplied by Supplier.

4.3 Utilization. Any Hardware provided to Client under this Agreement may be new or reconditioned. It is solely Supplier’s decision to which generation of Hardware that is used at any given time.

4.4 Return. Upon termination or expiration of this Agreement for any reason, Client must contact Supplier within fourteen (14) business days from the effective date or termination or expiration of this Agreement to arrange for returning all Hardware, at Client’s expense. Hardware must be returned to Supplier in good working condition within thirty (30) days of the effective date termination or expiration of this Agreement (“Return Deadline”), normal wear and tear excluded. If Supplier does not receive such Hardware within such Return Deadline or if the Hardware is returned in damaged condition, Supplier will charge Client, and Client agrees to pay to Supplier, the Hardware Default Prices set forth on Exhibit C.

4.5 Replacement. Supplier will replace non-functioning Hardware that has not been transmitting data for thirty (30) consecutive days and will notify Client if this occurs. Supplier will ship ready-configured Hardware with specific replacement instructions no later than fourteen (14) business days after the non-functioning Hardware has been confirmed by Supplier. Client agree to replace the Hardware during the first forthcoming on-site maintenance visit. Client agrees to ship back to Supplier the non-functioning Hardware for Suppliers technical investigation. All shipping cost under this Section 4.5 will be paid for by Supplier.

4.6 Vandalism and theft. In case of theft and vandalism of Hardware, Client agrees to notify Supplier about the issue as soon as practicable. Client shall, at its own expense, ship the non-functioning vandalized Hardware back to Supplier for technical inspection. In case of theft and vandalism of Supplier’s Hardware, Supplier will charge Client, and Client agrees to pay to Supplier, the Hardware Default Prices set forth on Exhibit C.

5. AUTHORIZATION LIMITATIONS AND RESTRICTIONS.

Client shall not, and shall not permit any other person to, access or use the Services or Hardware except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or Hardware; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Hardware to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Hardware, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Hardware or access or use the Services or Hardware other than by an Authorized User through the use of his or her own then valid access credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Hardware, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Hardware, or Supplier’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Hardware, including any copy thereof; (h) access or use the Services or Hardware in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Supplier customer), or that violates any applicable law; (i) access or use the Services or Hardware for purposes of competitive analysis of the Services or Hardware or the development, provision or use of a competing software service or product or any other purpose that is to the Supplier’s detriment or commercial disadvantage; or (j) otherwise access or use the Services or Hardware beyond the scope of the authorization granted under this Agreement.

6. CLIENT RESPONSIBILITY

6.1 Accounts. Client is responsible for all activities conducted under its accounts. Client will be solely responsible for the security, integrity and confidentiality of its Authorized User accounts, including but not limited to administrative and user passwords, login credentials, API keys, Authorized User names, and other Authorized User information. User logins are for Authorized User only and cannot be shared or used by more than one person, but any user login may be reassigned to another person as needed. Client, not Supplier, will be responsible for all communications with its Authorized User regarding the Services.

6.2 Multi-User Access. As part of the Services, Client may authorize third-party users (e.g., third party developers) to access and contribute to Client’s account on behalf of Client (“Multi-User Access”). If Client allows such Multi-User Access, Client shall remain solely responsible for such third- party users, and must ensure that the third-party abide by the terms of this Agreement.

7. TRADEMARKS, ATTRIBUTION AND PUBLICITY

7.1 Branding Guidelines. Client agrees to cooperate with and provide reasonable assistance to Supplier in promoting and advertising the Services. Client shall adhere to the trademark and attribution guidelines, available at www.spiio.com/mediaresources/, for use of Supplier’s trademarks, logos, service marks or images in promotional, advertising, instructional, training or reference materials, or on Client’s web sites, products, labels, or packaging.

7.2 Attribution. Unless otherwise agreed to by Supplier, Client will include the words “powered by Spiio” with Supplier’s logo in connection with Client’s use of the Services and hardware in accordance with Supplier’s Branding Guidelines, with placement to be mutually agreed upon by the parties. Client cannot alter the branding of the Services and Hardware or any other proprietary notices without express prior approval of Supplier.

7.3 Publicity. Client may not issue a press release or make other public statements relating to this Agreement without Supplier’s prior written consent, except as required by law. The parties will announce the relationship via joint press release on execution of this Agreement or on a mutually agreed upon date. Any use or mention of Supplier in a press statement, promotional advertisement or event, or on a website must be approved by Supplier in advance.

7.4 License. In connection with such marketing and promotion activities, Supplier hereby grants to Client, during the Term, a non-exclusive, non-transferrable, license to use Supplier’s name, trademarks, and logos (“Licensed Marks”) solely in connection with in promoting and advertising the Services as contemplated by this Agreement. Prior to any use by Client of any promotional, advertising and other materials and activities using or displaying the Licensed Marks, except to the extent such materials or activities are provided to Client by Supplier, Client shall provide samples of the proposed materials and descriptions of the proposed activities to Supplier for review and Client’s use of the materials or commencement of the activities shall be subject to receipt of Supplier’s prior written approval in each instance. Except for the foregoing, this Agreement does not include any right for Client to use any trademark, service mark, trade name or any other mark of Supplier or any other party or licensor. All uses of the Supplier’s trademarks and goodwill associated therewith shall inure solely to the benefit of Supplier.

8. INTELLECTUAL PROPERTY

8.1 Supplier’s Intellectual Property. The Services, including Service Software, Supplier’s software embedded in the Hardware and any mobile, desktop or web applications, development environments, APIs, libraries and any other software or documentation related to the Services (or upon which the Services are based), including any improvements, enhancements, or modifications thereto, contain proprietary and confidential information of Supplier that is protected by applicable intellectual property and other laws. Supplier owns all right, title and interest in and to the Services and all Intellectual Property Rights embodied therein. No rights or licenses are granted by Supplier to Client except as expressly set forth in this Agreement. All other rights are expressly reserved by Supplier.

8.2 Feedback. If Client provides any suggestions or feedback or requests any modifications related to the Services or Hardware or other products or services (“Feedback”) to Supplier, Supplier will own all rights, title, and interest in and to such Feedback. Supplier will be entitled to use the Feedback without restriction, and Client hereby assigns to Supplier all right, title, and interest in and to the Feedback (and all Intellectual Property Rights therein) and agrees to provide Supplier with any assistance Supplier may require (at Supplier’s expense) to document, perfect, and maintain Supplier’s rights in the Feedback. In such case of the Feedback resulting in new services, the amended, altered, reduced or extended services must be expressly specified in an addendum to Exhibit A, and the possible impact of Client’s orders or instructions on the fees and expenses to be paid to Supplier must be expressly agreed by and between the parties in an addendum to Exhibit C before the services are performed.

9. CONFIDENTIALITY

The following Confidentiality terms will govern in the absence of a standalone Nondisclosure Agreement (“NDA”) executed by the parties. In the event of a conflict between this Section and a NDA, the terms of a current NDA will prevail:

9.1 Obligations. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose Confidential Information to such party. The Receiving Party agrees to (i) hold Confidential Information in confidence, (ii) use it only in connection with this Agreement or otherwise for the purpose for which it was disclosed, and (iii) protect Confidential Information by using the same degree of care, but no less than a reasonable degree of care (including reasonable security measures), to prevent the unauthorized use, dissemination or publication of Confidential Information as the Receiving Party would use to protect its own confidential information. If the Disclosing Party authorizes the Receiving Party to make copies of Confidential Information, the Disclosing Party’s proprietary rights notices shall be reproduced in the same manner as the original Confidential Information. The Receiving Party may disclose Confidential Information to its employees, agents, financial advisers and independent contractors only on a need-to-know basis and only as necessary to fulfill the obligations under this Agreement, and provided that such third parties have executed a written nondisclosure agreement substantially as protective of Confidential Information as this Agreement.

9.2 Exclusions. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally known or available to the public through no fault of the Receiving Party, (b) was rightfully in the Receiving Party’s possession prior to the disclosure by the Disclosing Party, (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) is required to be disclosed by law, provided the Receiving Party promptly notifies the Disclosing Party of any such compelled disclosure and provides reasonable cooperation and assistance in opposing such compelled disclosure. These obligations of confidentiality will continue for a period of five (5) years from the date of the disclosure of Confidential Information, except that confidentiality obligation with respect to information that is a trade secret will continue for as long as information remains a trade secret under applicable law.

9.3 Remedies. The Receiving Party acknowledges that an unauthorized disclosure of Confidential Information will cause irreparable harm to the Disclosing Party for which damages alone will not be a sufficient remedy. Accordingly, the Receiving Party agrees that, in addition to all other remedies available to the Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms of these Confidentiality obligations, the Disclosing Party will, without the necessity of proving actual damages or posting any bond or other security, be entitled to temporary or permanent injunctive relief.

10. FEES; TAXES

10.1 Fees. Client will pay Supplier the fees (“Fees”) set forth in an applicable Order Form, including the relevant fees set forth in Exhibit C. All Fees are non-cancelable and non-refundable, and payable in U.S. Dollars. Supplier reserves the right to change the Fees in any renewal Order Form. If, at any time during the Term, Client desires to convert to a higher tier/plan, then Client will pay to Supplier the difference in Fees, or if applicable “Spiio Credits,” for the selected higher tier/plan and the Fees, or if applicable “Spiio Credits,” that the Client has previously paid to Client for the then-current tier/plan, prorated for the balance of the Term. Unless otherwise provided in the Order Form, “Spiio Credits” must be utilized within twenty-four (24) months of the Agreement/Order Form Effective Date; otherwise, Client forfeits the right to use such Spiio Credits. Any pre-paid but unused Services may not be rolled over into a new Term and any pre-paid Fees will not be refunded in the event of the expiration. In the event Client’s use of the Services exceeds the service capacity indicated on an applicable Order Form, Client shall be billed and agrees to pay for the excess usage over the Service capacity as described on the Order Form. Upon expiration or termination of this Agreement and applicable Order Form(s), any unused Services will immediately expire and shall not be refunded. Supplier reserves the right to deny or suspend Services for unpaid or delinquent Fees.

10.2 Fee Disputes. If Client believes that Supplier has billed Client in error, Client must contact Supplier within sixty (60) days from the date of invoice in which the error appeared, in order to receive an adjustment or credit. Such Fee dispute inquiries must be directed to Supplier’ support at www.spiio.com/support.

10.3 Invoicing. Full payment for invoices issued in any given month must be received by Supplier within thirty (30) days after the date of the invoice, or the Services may be terminated. Supplier invoice quarterly in advance. Other invoicing terms might apply for as detailed on the Order Form. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum rate permitted by applicable law, whichever is lower, plus all expenses related to collection.

10.4 Taxes. Client will be responsible for and will pay all duties, assessments, excise taxes, and the like, now or hereafter applied on the sale, transportation, import, export, licensing or use of the Services and Hardware, including sales tax, value added tax or similar tax. All payments by Client shall be made free and clear of, and without reduction for, any withholding taxes or banking charges.

10.5 Price Increases. Supplier must notify Client of any increase in Fees at least ninety (90) days prior to the effective date of such Fee increase. Price increases will apply on the next coming renewal of each Term.

11. INDEMNIFICATION

Client hereby agrees to indemnify, defend, and hold harmless Supplier (including its employees, officers, directors, agents and contractors) against any and all damages, losses, liabilities, settlements and expenses (including without limitation reasonable attorneys’ fees) in connection with any claim or action that relates to or arises from (i) use of the Services by Client or Client’s end users; (ii) an alleged breach of this Agreement by Client or violation of applicable law by Client or Client’s end users; or (iii) Client Data or other client property.

12. LIMITED WARRANTY AND DISCLAIMER.

12.1 Limited Warranty. Supplier will use commercially reasonable efforts consistent with prevailing industry standards to provide the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Supplier or by third-party providers, or because of other causes beyond Supplier’s reasonable control, but Supplier shall use reasonable efforts to provide advance notice in writing of any scheduled service disruption. In the event of a breach of the limited warranty provided in this Section, Client’s sole and exclusive remedy, and Supplier’s sole and exclusive obligation, shall be to use commercially reasonable efforts to re-perform the Services or provide a workaround for the reproducible error(s) that caused the breach of these warranties.

12.2 Disclaimer. THE LIMITED WARRANTY DESCRIBED ABOVE IS THE ONLY WARRANTY SUPPLIER MAKES WITH RESPECT TO THE SERVICES, HARDWARE, SUPPORT, AND OTHER SERVICES. SUPPLIER DOES NOT MAKE ANY OTHER WARRANTIES, AND SUPPLIER HEREBY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT CLIENT GETS FROM SUPPLIER OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

13. BETA/EVALUATION: NO WARRANTY.

During the Term of this Agreement, Supplier may offer Client an opportunity to test or evaluate free versions of its software or services that may be in development or beta. Client acknowledges and agrees that if Client chooses to evaluate or test such free software or services, it will do so at its own risk and Supplier will offer NO WARRANTY in connection with such software or services nor will Supplier provide any support for such software or services.

14. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SUPPLIER BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER’S TOTAL CUMULATIVE LIABILITY TO CLIENT UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT TO SUPPLIER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

15. TERM; TERMINATION

15.1 Term. This Agreement is effective as of the Effective Date and will continue in force for a period of two (2) year from the Effective Date or until terminated as provided herein (the “Initial Term”). Upon expiration of the then-current Term, Supplier will deliver to Client an invoice for Fees for an additional one (1) year renewal term (the “Renewal Term”). Client may cancel the Renewal Term by either providing written notice of non-renewal to Supplier via sales@spiio.com at any time during the then-current Term or within thirty (30) days after the invoice date, and this Agreement will automatically terminate at the end of the then-current Term. “Term” means the Initial Term and any Renewal Term.

15.2 Termination for Cause. Either party may terminate this Agreement and any applicable Order Form(s) for cause (i) upon a thirty (30) days prior written notice if the other party in a material breach and such breach remains uncured at the expiration of such thirty (30) day notice period or (ii) in case of Supplier, upon a ten (10) day prior written notice if Client is delinquent in its payment and does not remedy the delinquency within such ten (10) day notice period. In the event of termination by Client for Supplier’s uncured material breach in the provision of the Services under this Agreement, Client’s sole and exclusive remedy would be for Supplier to refund to Client a pro-rata share of any pre-paid Fees that have not been provided as of the termination date.

15.3 Effect of Termination. Upon termination or expiration of this Agreement (a) the Term shall end; (b) all rights to use the Services and Hardware granted to Client hereunder shall immediately terminate; (c) Supplier may disable Client’s access to the Services; and (d) Client must return all Hardware in accordance with Section 4.4. The following Sections will survive any termination or expiration of this Agreement: 5, 8, 9, 10, 11, 12.2, 13, 14, 15.3, 16, and 17, and such other terms that by their nature should survive termination or expiration of the Agreement.

16. GOVERNING LAW AND JURISDICTION.

This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties irrevocably consent to personal jurisdiction and venue therein.

17. GENERAL

17.1 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

17.2 Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.

17.3 Notices. All notices provided hereunder will be in writing, delivered personally, by e-mail or sent by overnight courier, registered or certified mail to the addresses specified in the Order Form or such other address as may be specified in writing by notice given in accordance with this Section. All such notices will be deemed to have been given: (a) upon receipt when delivered personally; (b) upon receipt when delivered by e-mail; or (c) in the case of overnight courier, one weekday after delivery to the overnight courier.

17.4 Waiver. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

17.5 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.

17.6 Independent Contractors. The parties are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between the parties.

17.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed an original, and all of which together will constitute one and the same agreement. Facsimile and electronic (e.g., PDF) signatures shall be as effective as original signatures. This Agreement shall be effective only after it has been duly executed by both parties.

17.8 Amendments. No modification, change, or amendment of this Agreement shall be binding upon the parties, except by mutual express consent in writing of subsequent date duly signed by the authorized representatives of each of the parties.