These Rejoiner Terms of Service (“Agreement”) are a contract between (“You” or “Client”) and Rejoiner, Inc. (“Rejoiner”), a Delaware corporation with a place of business as 26 Washington Square, Suite 7, Newport, RI 02840, USA (each a “Party” and collectively, the “Parties.”) You must read, agree with and accept all of the terms and conditions of this Agreement in order to use Rejoiner Services. These Terms are effective upon your first access and use of Rejoiner Services (“Effective Date”).
BY AGREEING TO THESE TERMS ON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE LICENSED MATERIALS OR TO PROVIDE SERVICES VIA THE LICENSED MATERIALS TO THESE TERMS; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF ITS REPRESENTATIVES; AND (C) “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY AND THE PERSONS THAT ACCESS THE LICENSED MATERIALS ON ITS BEHALF.
“Account Information” means a username and password used to access and use the Services.
“Confidential Information” shall mean any and all technical and non-technical data or information, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the Disclosing Party, or which, by its nature, the Receiving Party would reasonably deem to be confidential or proprietary, including the terms of this Agreement and any information that relates to the Disclosing Party’s products, services, research, development, business activities, ideas, know-how, inventions, processes, testing methods, specifications, designs, schematics, techniques, technical documentation, marketing or business plans, and financial information. Without limiting the foregoing, the Rejoiner Materials are the Confidential Information of Rejoiner.
“Client Data” means all data Client provides to Rejoiner in connection with this Agreement, including, without limitation, data regarding Client’s customers.
“Customer Data” means data collected automatically by the Services regarding how Client’s customers experience and interact with Client’s eCommerce website and email marketing campaigns.
“Creatives” means any creative assets Rejoiner creates for Client as part of the Services. Creatives are deemed accepted by Client upon delivery.
“Data” means Client Data and Customer Data.
“Disclosing Party” is defined in Section 5.1.
“Documentation” means any end user instructions, information and other documentation related to the Services that Rejoiner provides to Client.
“Feedback” is defined in Section 4.2.
“Fees” means Subscription Fees and Usage Fees.
“Intellectual Property Rights” means all intellectual property rights and related proprietary rights arising under the laws of all jurisdictions worldwide, including: (a) patents and patent applications, including any continuation, continuation-in-part, divisional and provisional applications and any patents issuing thereon and any reissues, reexaminations, substitutes and extensions of any of the foregoing; (b) all registered and unregistered trademarks, service marks, trade or brand names, other proprietary indicia, logos, and symbols and all goodwill associated with any of the foregoing; (c) original works of authorship, registered and unregistered copyrights and copyright applications; (d) designs, inventions (whether or not patentable), marketing and educational tools, formulae, processes, know-how, technology, and business methods; and (e) software and computer rights.
“Personal Data” means Data that is personally identifiable information.
“Platform” means Rejoiner’s online consumer ecommerce tracking platform.
“Receiving Party” is defined in Section 5.1.
“Rejoiner Materials” means the Services, Scripting Libraries, Documentation, Creatives, and any derivative works of the Data created by Rejoiner under this Agreement, though excludes any Intellectual Property Rights owned by Client as of the Effective Date and provided to Rejoiner for use in performing the Services.
“Scripting Libraries” means the software components of the Platform that Rejoiner provides to Client for use on Client’s website.
“Services” means the Platform and the email marketing and related professional services to be provided by Rejoiner under an applicable Service Order.
“Service Order” means an order for Services that is entered into by the Parties under this Agreement.
“Subscription Fees” means the annual subscription fees for a Service as set forth on an applicable Service Order.
“Subscription Term” means the subscription period for one or more Services as set forth on an applicable Service Order.
“Term” is defined in Section 6.1.
“Usage Fees” means the monthly fees for use of a Service in excess of the base usage included as part of such Service.
“Services” Subject to the terms and conditions of this Agreement, Rejoiner shall use commercially reasonable efforts to provide Client with the Services set forth on each applicable Service Order. In the event of any conflict between the terms contained in this Agreement and the terms contained in a Service Order, the terms of this Agreement shall control, unless the Service Order explicitly references a section of this Agreement to be superseded, in which case the terms of the Service Order shall control with respect to such section, but only to the extent of the conflict. Rejoiner reserves the right to change, modify, update, add to, discontinue or retire the Services and any aspect or feature thereof. Rejoiner will provide Client with advance written notice of any material changes to the Services.
License to Platform and Services. Subject to the terms and conditions of this Agreement, Rejoiner hereby grants Client a non-exclusive, non-transferable, non-sublicensable license during the Subscription Term to (a) access and use the Platform solely for the purpose of receiving the Services for Client’s internal business operations; (b) download, install, and execute the Scripting Libraries in connection with the operation of Client’s website; and (c) make a reasonable number of copies of the Documentation solely as necessary to access and use the Platform and receive the Services in accordance with this Agreement.
License to Creatives. Subject to the terms and conditions of this Agreement, Rejoiner hereby grants Client a non-exclusive, non-transferable, non-sublicensable, license during the Term to reproduce, distribute, publicly display, publicly perform, and transmit the Creatives for Client’s marketing purposes.
License Restrictions. Client shall not (a) modify, alter, translate or create derivative works of the Rejoiner Materials; (b) decompile, disassemble, decode, or reverse engineer the Rejoiner Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Rejoiner Materials; (c) sublicense, export, sell, provide for service bureau use, lease, rent, loan, distribute, make available or otherwise transfer the Rejoiner Materials to any third party; (d) remove or alter any copyright notices or other proprietary notices included in the Rejoiner Materials; or (e) bypass, delete or disable any copy protection mechanisms or any security mechanisms in the Rejoiner Materials.
Prohibited Activities. Client shall not use the Rejoiner Materials: (a) in violation of this Agreement, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Service Order or on the Rejoiner website; (b) to infringe, misappropriate, or violate the Intellectual Property Rights of any third party or any rights of publicity or privacy; (c) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing spam and unsolicited bulk email, automatic telephone dialing systems, telephone and electronic marketing,export/import control, unfair competition, anti-discrimination and/or false advertising); (d) to store defamatory, libelous, threatening, harassing, obscene or pornographic data, or (e) to introduce or propagate any malware, viruses, worms, Trojan horses, spyware, or other malicious or harmful code. Client shall not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or operation of the Services, or access the Services by any means except those provided by Rejoiner.
Account Information. Client is responsible for maintaining the confidentiality and security of the Account Information provided to it by Rejoiner or created by Client for its authorized users. Client is fully responsible for all activities that occur under its Account Information (except for activities caused by the gross negligence or willful misconduct of Rejoiner). In the event that Client suspects or becomes aware of any unauthorized use of its Account Information, Client shall immediately notify Rejoiner of the same.
Fees. Client shall pay all Subscription Fees annually in advance, and pay all Usage Fees on a monthly basis following the month in which such Usage Fees are accrued. Rejoiner reserves the right to change Usage Fees on thirty (30) days prior written notice to Client. Client agrees that Rejoiner will charge the credit card Client provides in connection with the applicable Service Order for all applicable Fees in accordance with the foregoing payment schedule. All Fees are non-cancelable and non-refundable. Client must email any billing disputes to firstname.lastname@example.org within thirty (30) days of receipt of the applicable billing statement, and Client waives any disputes not made within that time.
Taxes. Client will pay all of the following levied upon the delivery or use of Services: (a) sales, use, excise and value-added taxes; (b) import, export, or other duties; and (c) all government permit, withholding or license fees, and customs or similar fees. If Client is required to pay any withholding tax, charge or levy in respect of any payments due to Rejoiner hereunder, Client agrees to gross up payments actually made such that Rejoiner will receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.
Late Payments. Late payments will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Rejoiner must initiate a collections process to recover any undisputed Fees due and payable hereunder, then Client shall pay all costs associated with such collections efforts. In the event Rejoiner delivers an invoice for any Fees or interest payments owed hereunder to Client, Client shall pay the invoiced amounts thirty (30) days of the date of such invoice.
Ownership of Rejoiner Materials. All right, title, interest, ownership, and Intellectual Property Rights in and to the Rejoiner Materials and all copies, modifications, enhancements, and derivative works of the Rejoiner Materials vest in and belong to Rejoiner and/or its suppliers. This Agreement confers no title or ownership in the Rejoiner Materials or any copies, modifications, enhancements, or derivative works of the Rejoiner Materials and is not a sale of any rights. The structure, organization, and code included in the Rejoiner Materials are the valuable trade secrets and confidential information of Rejoiner and/or its suppliers and constitute Rejoiner Confidential Information. The Rejoiner Materials are protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant Client any rights in the Rejoiner Materials or any copies, modifications, enhancements, and derivative works of the Rejoiner Materials. Client agrees that it will not take any action that jeopardizes Rejoiner’s proprietary rights or acquire any right in the Rejoiner Materials, including any actions in violation of Section 2.4. To the extent Client obtains any interest in the Rejoiner Materials, or any copies, modifications, enhancement or derivative works thereof, Client hereby assigns all of its right, title and interest in and to the same to Rejoiner. Client shall, upon Rejoiner’s reasonable request, execute any instrument that may be appropriate to assign the foregoing rights to Rejoiner or perfect such rights in Rejoiner’s name.
Feedback. Any and all suggestions for correction, change and modification to the Rejoiner Materials and other feedback Client elects to provide to Rejoiner (collectively “Feedback”) are and will remain the property of Rejoiner. Client acknowledges and expressly agrees that any contribution of Feedback does not and will not give or grant Client any right, title or interest in the Rejoiner Materials or in any such Feedback. All Feedback becomes the sole and exclusive property of Rejoiner, and Rejoiner may use and disclose Feedback without further notice or compensation to Client and without retention by Client of any proprietary or other right or claim. Client hereby assigns to Rejoiner any and all right, title and interest that Client may have in and to any and all Feedback. At Rejoiner’s request and expense, Client will execute any document, registration or filing required to give effect to the foregoing assignment.
Client and Customer Data. Client authorizes Rejoiner to collect Customer Data via the Services, and acknowledges that Customer Data may include Personal Data. Client hereby grants Rejoiner a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free, fully-paid license to (a) access, use, process, copy, analyze, display, perform, modify, enhance, and create derivative works of the Data in connection with the provision of Services to Client under this Agreement, and (b) use the Data in anonymized and aggregate form for research, development, and for improving Rejoiner’s products and services, provided that Rejoiner shall not use the Data in a manner that would identify Client, and must obtain Client’s prior written consent to publicly disclose any Data. Rejoiner shall not disclose Data that constitutes Personal Data to any third party without Client’s prior written consent (except to Rejoiner’s third party service providers who are subject to confidentiality obligations with respect to such Personal Data). Rejoiner shall own any derivative works of the Data it creates under this Agreement or otherwise. Rejoiner may transfer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of Rejoiner’s stock or assets or business to which this Agreement relates.
Personal Data. Client acknowledges that the Services may be used to process information that may be regulated by privacy or data protection laws. Client hereby instructs Rejoiner to take such steps in the processing of Personal Data as are reasonably necessary to the performance of Rejoiner’s obligations under this Agreement, and agrees that such instructions constitute Client’s full and complete instructions as to the means by which Personal Data shall be processed by Rejoiner. To the extent that any privacy or data protection laws impose an obligation upon Rejoiner to comply with an individual’s request for access to or correction of their Personal Data, Rejoiner shall comply with all such laws and Client shall provide Rejoiner, at Rejoiner’s reasonable expense, with reasonable assistance in satisfying such obligation. Client agrees that it may be necessary for Rejoiner to access Client’s data to respond to Client’s request for assistance with any technical problems and/or queries, and all such access will be logged by the Services. Client shall hold Rejoiner, its subcontractors, suppliers and licensors harmless from any and all data protection claims relating to such access. Rejoiner agrees that it shall: (a) implement security measures reasonably designed to safeguard Personal Data against unauthorized access, loss, destruction, damage or disclosure; and (b) provide reasonable support to Client in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws.
Use and Non-Disclosure. Each Party (“Receiving Party”) will maintain in confidence all Confidential Information disclosed to it by the other Party (the “Disclosing Party”) under this Agreement. The Receiving Party agrees not to use any of the Disclosing Party’s Confidential Information except as expressly authorized by this Agreement, and further agrees not to disclose or grant use of such Confidential Information to any third party without the prior written consent of the Disclosing Party on a case-by-case basis. Notwithstanding the foregoing, either Party may disclose this Agreement to its professional advisors and potential and actual investors and/or acquirers, provided such persons are subject to written confidentiality obligations no less protective than the terms of this Section 5.1. In addition, the Receiving Party will use at least the same standard of care as it uses to protect its own Confidential Information of similar nature to protect the confidentiality of the Confidential Information of the Disclosing Party, and in no event less than reasonable care. The Receiving Party agrees to promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information. The restrictions on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or regulatory requirement, provided that Receiving Party shall first notify the Disclosing Party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order.
Exceptions. The obligations of confidentiality contained in Section 5.1 will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (e) was developed independently by the Receiving Party without any use of the Disclosing Party’s Confidential Information.
Term. The term of this Agreement commences upon the Effective Date and, subject to earlier termination as set forth herein, continues until the expiration of the last-to-expire Service Order (the “Term”). Each Service Order shall continue for the Subscription Term specified therein, and will automatically renew for subsequent Subscription Terms unless either Party notifies the other of its intent not to renew such Subscription Term at any time prior to such renewal.
Termination for Convenience. Client may terminate any Service Order, or this Agreement and all Service Orders, for convenience at any time upon thirty (30) days prior written notice to Rejoiner.
Termination for Cause. Either Party may terminate a Service Order, or this Agreement and all Service Orders, effective upon written notice to the other Party, if the other Party materially breaches a Service Order or this Agreement and does not cure the breach within thirty (30) days after the non-breaching Party notifies it in writing of the breach. In addition, either Party may terminate this Agreement and all Service Orders, effective immediately upon written notice to the other Party, if the other Party (a) breaches Section 4.3; (b) infringes, misappropriate or violates the Intellectual Property Rights of the non-breaching Party; (c) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors; or (d) commits any breach of this Agreement that is incapable of cure. Rejoiner reserves the right to limit or suspend Client’s access to and use of the Rejoiner Materials if Client fails to pay any undisputed Fees when due, or otherwise breaches this Agreement or any Service Order. Rejoiner shall have no liability to Client for any limitation, suspension or termination of access to or use of the Rejoiner Materials pursuant to this Section 6.3.
Effect of Termination. Upon the expiration or any termination of this Agreement, Client shall immediately cease all use of the Rejoiner Materials, and each Party shall return any Confidential Information of the other Party in its possession, or destroy the same and certify completion of the destruction in a certificate of destruction sent to the other Party. The following sections shall survive any expiration or termination of this Agreement: 1, 3, 4, 5, 6.4, 7, 8, 9 and 10.
Mutual Warranties. Each Party represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement, (b) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such Party, in accordance with its terms; and (d) it will comply with all applicable law in the performance of its obligations and duties hereunder.
Services Warranty. Rejoiner warrants that the Services, when used in accordance with the terms of this Agreement, will function substantially in accordance with the Documentation (the “Limited Warranty”). Rejoiner’s sole and exclusive obligation and Client’s sole and exclusive remedy for any breach of the Limited Warranty shall be for Rejoiner to use commercially reasonable efforts to promptly correct any failures of the Services to perform in accordance with the Limited Warranty and to refund any Fees for any Services which were not or could not be provided due to the breach of the Limited Warranty. Rejoiner shall have no liability or obligation for any breach of the Limited Warranty resulting from: (a) operating system modifications, changes or updates applied by Client; (b) the use or combination of the Services with any other software or hardware not supported by Rejoiner; (c) causes external to the Services, such as problems with the hardware, network or other infrastructure with which the Services are used; (d) unauthorized or improper use of the Services; or (e) any modification of the Services by anyone other than Rejoiner.
Client Data. Client represents and warrants that: (a) it is solely responsible for the Client Data; (b) it provided all required notices and has the necessary rights and licenses, consents, permissions, waivers and releases to use the Client Data and provide it to Rejoiner for use in performing the Services under this Agreement; (c) to the extent Client Data contains telephone numbers, that Client has not used automated means to select such telephone numbers; and (d) the Client Data: (i) does not infringe, misappropriate or violate any rights of Rejoiner or any third party, (ii) does not constitute defamation, invasion of privacy, violation of publicity rights, or otherwise violate any rights of any third party, and (iii) is not designed for use in any illegal activity or does not promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE REJOINER MATERIALS ARE PROVIDED TO CLIENT “AS IS,” WITHOUT WARRANTY OF ANY KIND. REJOINER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE REJOINER MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REJOINER DOES NOT WARRANT THAT THE REJOINER MATERIALS WILL MEET CLIENT’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE SECURE OR ERROR FREE
Client Indemnity. Client will indemnify and hold Rejoiner, its investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the “Rejoiner Parties”) harmless against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, resulting from any claim, suit, action or proceeding against a Rejoiner Party, resulting from or arising out of or in connection with (a) claims of infringement of Intellectual Property Rights based on (i) Client’s use or combination of the Services with any other software or hardware not provided or supported by Rejoiner, if such infringement would not have occurred but for such use or combination; (ii) any unauthorized modification of the Services by Client; or (iii) the use by Client of any version of the Services other than the current version of the Services, if such version was made available by Rejoiner at no cost to Client with notice that such version was being provided in order to avoid an alleged or potential infringement; (b) Rejoiner’s collection or use of any Data in accordance with this Agreement; and (c) any breach by Client of any representation, warranty or obligation under this Agreement.
Rejoiner Indemnity. Except as set forth in Section 8.1, Rejoiner will defend at its expense any action brought against Client by a third party to the extent that it is based on a claim that the Services, when used in accordance with the Documentation and the terms and conditions of this Agreement, infringe a United States patent, copyright or trade secret of any third party, and Rejoiner will pay any costs, damages and reasonable attorneys’ fees finally awarded against Client in, or payable in settlement of, such action which are directly attributable to such claim, provided that (a) Client notifies Rejoiner promptly in writing promptly of the claim, (b) Client permits Rejoiner to assume sole control of the defense, compromise or settlement of the claim, and (c) Client provides to Rejoiner reasonable cooperation, information and assistance in connection therewith. If a final injunction is obtained against Client’s use of the Services by reason of infringement, or if in Rejoiner’s opinion the Services are likely to become the subject of a successful claim of such infringement, Rejoiner may, at its option and expense, (x) procure for Client the right to continue using the Services, (y) modify the Services so that they are non-infringing, (z) replace the Services with other software or services of substantially similar functionality. In the event none of the foregoing options are commercially practicable as determined in Rejoiner’s reasonable discretion, Rejoiner will terminate this Agreement and provide Client a prorated refund of any pre-paid Fees for the remainder of Client’s Subscription Term. This Section 8.2 states Rejoiner’s sole and exclusive obligation, and Client’s sole and exclusive remedy, with respect to any claim that the Services infringe the Intellectual Property Rights of any third party.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR A PARTY’S BREACH OF SECTION 5, A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EXCEPT WITH RESPECT TO CLIENT’S PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO REJOINER IN THE SIX (6) MONTHS THAT PRECEDED THE EVENT THAT GAVE RISE TO LIABILITY.
Amendments. No amendment, modification, waiver, termination or discharge of any provision of this Agreement shall be effective unless the same shall be in writing specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by Rejoiner and Client, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given.
Assignment. Neither Party may assign or transfer this Agreement without the other Party’s prior written consent, and any purported assignment or transfer in violation of this provision is null and void and shall constitute a material breach of this Agreement. Notwithstanding the foregoing, either Party may, without the other Party’s consent but upon notice to the other Party, assign this Agreement to an affiliate or to a successor in interest upon a merger, reorganization, change of control, acquisition or sale of all or substantially all of the assets of such Party to such successor. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Counterparts. This Agreement may be executed in counterparts, each of which counterparts when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
Entire Agreement. This Agreement, together with all Service Orders, constitutes the entire agreement of Rejoiner and Client with respect to the subject matter hereof, and all prior or contemporaneous understandings or agreements, whether written or oral, between Rejoiner and Client with respect to such subject matter are hereby superseded in their entirety.
Force Majeure. If either Party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control (a “Force Majeure Event”), and if such Party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other Party, then the affected Party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If a Force Majeure Event continues for more than thirty (30) days, then either Party may terminate this Agreement upon written notice to the other Party.
Governing Law; Venue. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Delaware without regard to conflict of law principles that would result in the application of any law other than the State of Delaware. The Parties expressly reject any application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims or causes of action arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and Client hereby consents to the jurisdiction of such courts.
Headings; Interpretation. Headings used herein are for convenience only and shall not in any way affect the construction of, or be taken into consideration in interpreting this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing an instrument to be drafted.
Marketing. Rejoiner may use Client’s name and trademark in Rejoiner’s marketing materials and web site. Client understands and acknowledges that Rejoiner does not certify nor endorse, and has no obligation to certify or endorse, any of Client’s products or content.
Notice. All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly delivered four (4) business days after it is sent by registered or certified mail, return receipt requested, postage prepaid, or one (1) business day after it is sent for next business day delivery via a reputable international courier service, in each case to the intended recipient as set forth below:
If to Rejoiner: Rejoiner, Inc. PO Box 341 Newport, RI 02840
If to Client: The address specified on the most recent Service Order.
Either Party may also give any notice, request, demand, claim or other communication hereunder using any personal delivery, telecopy, or electronic mail, and the same shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the Party to be notified; (ii) upon confirmation of receipt, if sent by electronic mail or facsimile. Either Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Party notice in the manner set forth herein.
Relationship of Parties. Nothing contained herein shall be deemed to create a joint venture, agency, partnership or employer-employee relationship between the Parties. Nothing set forth herein shall empower either Party to enter into any contracts or commitments in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
Severability. If any provision of this Agreement (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
Third-Party Beneficiaries. Except for Section 8, nothing in this Agreement shall confer any rights upon any person or entity other than the Parties, and each such Party’s respective successors and permitted assigns.
Waiver. No failure on the part of Rejoiner or Client to exercise and no delay in exercising any right, power, remedy or privilege under this Agreement, or provided by statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, power, remedy or privilege or be construed as a waiver of any breach of this Agreement or as an acquiescence therein, nor shall any single or partial exercise of any such right, power, remedy or privilege preclude any other or further exercise thereof or the exercise of any other right, power, remedy or privilege.