CO-OP COMMERCE TERMS AND CONDITIONS
This Agreement is the entire agreement of the parties regarding the Platform and it includes the Order, these Terms, any exhibits attached to these Terms, and all of the other terms and conditions incorporated into this Agreement by reference. This Agreement supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to the Platform and all past dealings or industry customs. Capitalized terms used but not defined in these Terms have the meanings ascribed to such terms in the Order. In the event of a conflict between the terms and conditions of these Terms and the terms and conditions of any Order, the terms and conditions of the Order will govern.
1. Platform.
1.1 General. Co-Op provides a proprietary web-based solution and software components designed to (a) enable merchants to list their products on other merchant websites or online storefronts and (b) provide various analytics tools and business metrics with respect to merchant products and businesses (collectively, the "Platform"). Customer may obtain access to the Platform pursuant to Orders. Each Order will outline (a) the features of the Platform being accessed and used by Customer, (b) the period the Platform will be accessible and provided (each, a "Subscription Term"), (c) the fees for the Platform ("Fees"), [and (d) the number of users authorized to use the Platform ("End Users").] Subject to the terms and conditions of this Agreement, Co-Op hereby grants to Customer a limited, nonexclusive, nontransferable license to internally access and use the features of the Platform described on the Order.
1.2 Customer Materials. Customer will timely provide or make available all data, content, and other materials (including, without limitation, all relevant information about Products) to Co-Op as reasonably necessary for, or otherwise in connection with, Co-Op's provision of the Platform (the "Customer Materials"). Customer hereby grants to Co-Op the right to access, reproduce, distribute, process, publish, display, perform, adapt, modify, analyze, and otherwise use and exploit the Customer Materials to provide, maintain, and improve the Platform. Customer acknowledges that (a) Co-Op is relying on Customer's timely, complete, and accurate provision of Customer Materials to Co-Op for Co-Op's provision of the Platform and (b) Co-Op will not be responsible or liable for failures or delays to provide the Platform to the extent resulting from (i) Customer's delay or failure to provide the Customer Materials in a timely manner or (ii) the inaccuracy or incompleteness of the Customer Materials. As between the parties and subject to the express grants within this Agreement, Customer owns all right, title and interest in and to the Customer Materials, and any and all Intellectual Property Rights (as defined below) embodied in such Customer Materials.
1.3 Passwords; End Users. Customer is responsible for maintaining the confidentiality of its and its End Users’ passwords, IDs, and other credentials and login information (collectively, "Passwords"), and Customer agrees that Co-Op has no liability with respect to the use of any Passwords. Customer acknowledges that Passwords are personal to Customer or each End User, and Customer is responsible for ensuring that each Password is used only by the applicable End User. Customer will notify Co-Op immediately if Customer has reason to believe that the security of Customer’s account has been compromised or if any of the Platform have been accessed by any unauthorized individuals. Customer is responsible for all acts or omissions of its End Users.
1.4 Obligations for Certain Personal Data. “Personal Data” means Customer Materials submitted by Customer or its End Users via the Platform in the course of accessing the Platform that Co-Op processes on behalf of Customer in connection with its services under the Agreement that consists of “personal information” or “personal data” as defined under applicable data protection law. To the extent that the Personal Data is subject to the California Consumer Privacy Act of 2018, as amended, including any regulations promulgated thereunder (the “CCPA”), with respect to such Personal Data, Co-op agrees to act as a service provider and will not retain, use, or disclose any Personal Data for any purpose other than for the specific purpose of performing the services through the Platform pursuant to this Agreement, or as otherwise permitted by the CCPA for service providers, including by not retaining, using, or disclosing the Personal Data for a commercial purpose other than to provide such services.
Customer and Co-Op agree that where Customer is subject to the GDPR, Co-Op will be the processor of the Personal Data. Prior to the transfer of Personal Data from the European Economic Area, the United Kingdom, or Switzerland to a third country under this Agreement (including to the United States), the parties will ensure that either the recipient country is subject to an adequacy decision issued under Article 45 of GDPR or that the parties enter into the Standard Contractual Clauses to govern such transfer in compliance with GDPR.
“GDPR”means (a) the Regulation (EU) 2016/679 of the European Parliament and of theCouncil of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), and (b) such law as incorporated into United Kingdom law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications(Amendments etc.) (EU Exit) Regulations 2019 (each as amended, superseded, or replaced).
2. “Standard Contractual Clauses” means, (i) Module 2 of the Annex to the CommissionImplementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU)2016/679 of the European Parliament and of the Council (the text of which is located at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914); or(ii) any equivalent transfer mechanism for cross-border transfers required under GDPR. Fees and Payment Terms; Credits.
2.1 Fees. Customer will pay to Co-Op the Fees set forth in each Order within 30 days of Co-Op's invoice therefor. The Fees do not include taxes. All payments made under this Agreement will be made (a) in U.S. Dollars and (b) by check or by bank wire transfer in immediately available funds to an account designated by Co-Op or by credit/debit card via an authorized Co-Op payment processor.
2.2 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Platform excluding only taxes based solely on Co-Op’s net income. Notwithstanding any terms to the contrary in this Agreement, (a) Co-Op will not be obligated to issue any refunds for Fees paid, and (b) Co-Op, at its sole discretion, may modify the Fees beginning on the expiration date of the Initial Subscription Term and annually thereafter, provided that modifications will only be effective as of the directly subsequent Renewal Subscription Term (as defined below).
2.3 Suspension. If any Fees under this Agreement are 30days or more overdue, Co-Op may, without limiting its other rights or remedies,(a) suspend Customer's and its End Users' access to and use of the Platform until such Fees are paid in full or (b) immediately terminate this Agreement without any further cure period and accelerate Customer’s unpaid Fee obligations such that all such obligations become immediately due and payable upon termination.
3. Confidentiality.
3.1 Definition. "Confidential Information" means all information disclosed(whether in oral, written, or other tangible or intangible form) by one party(the "Disclosing Party")to the other party (the "Receiving Party") (or all information (whether in oral, written, or other tangible or intangible form) acquired by the Receiving Party), concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party (or acquisition of the information by the ReceivingParty), is proprietary information of the Disclosing Party. Without limiting the foregoing, any software scripts or code provided or made available toCustomer by Co-Op as part of the Platform constitute Confidential Information of Co-Op.
3.2 Obligations. The Receiving Party will maintain in confidence the ConfidentialInformation and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no eventless than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 3.2. Each party agrees that it will not disclose the terms and conditions of this Agreement to any third party, provided that each party may disclose the terms and conditions of thisAgreement (a) to such party’s legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or other transaction. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Customer to Co-Op with respect to Co-Op or the Platform (collectively, "Feedback") will constituteConfidential Information of Co-Op. Further, Co-Op will be free to use, disclose, reproduce, license and other wise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account ofIntellectual Property Rights or otherwise.
3.3 Exceptions. Confidential Information will not include information that the Receiving Party can demonstrate (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party, (b) was in its possession prior to first receiving it from the Disclosing Party without an obligation of confidentiality, (c) was developed by the Receiving Party independently of, and without use of or reference to, the Confidential Information, or (d) was received by the Receiving Party from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a "Court Order"), but solely on the conditions that the Receiving Party (i) gives the Disclosing Party written notice of the Court Order within 24 hours after receiving it, and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 3.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
3.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
4. Representations and Warranties; AdditionalObligations.
4.1 Each party. Each party represents and warrants that(a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms.
4.2 Customer. Customer represents, warrants and covenants that(a) it possesses all necessary rights and consents to grant Co-Op the rights set forth in this Agreement with respect to all Customer Materials, (b)it has collected all Customer Materials in accordance with all applicable laws, rules, and regulations (including obtaining any consents and providing any notices required to provide Co-Op with Personal Data), (c) neither the Customer Materials nor Co-Op’s use of the Customer Materials in accordance with thisAgreement will (i) infringe, misappropriate, or otherwise violate anyIntellectual Property Rights (as defined below), publicity rights, or other rights of any third party or (ii) violate applicable laws, rules, or regulations, (iv) Customer will use the Platform in accordance with all applicable laws, rules, and regulations, and (v) all Customer Materials are accurate and complete.
5. Disclaimers. EXCEPT AS SET FORTH IN SECTION 4, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FURTHER, EXCEPT AS SET FORTH IN SECTION 4, CO-OP DOES NOT REPRESENT OR WARRANT THAT (a) THE ACCESS TO OR USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED,ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE,SYSTEM, OR DATA, (b) THE PLATFORM WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS, (c) ANY STORED CUSTOMER MATERIALS OR OTHER DATA WILL BE ACCURATE OR RELIABLE, OR WILL NOT BELOST, DAMAGED, OR CORRUPTED, (d) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR CO-OP WILL DETECT ANY BUG IN THE PLATFORM, I THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (f) THIRD-PARTY DISRUPTIONS OR SECURITY BREACHES OF THE PLATFORM WILL BE PREVENTED. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL PRODUCTS (INCLUDING, WITHOUT LIMITATION, PRICING, SHIPMENT AND FULFILLMENT, DELIVERY, PRODUCT LIABILITY, AND COMPLIANCE WITH APPLICABLE LAWS)AND CUSTOMER ACKNOWLEDGES THAT CO-OP ASSUMES NO RESPONSIBILITY OR LIABILITY FOR TRANSACTIONS BETWEEN CUSTOMER AND ANY USERS OF CUSTOMER'S WEBSITES OR SERVICES OR PURCHASERS OF PRODUCTS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT CO-OP HASNO RESPONSIBILITY OR LIABILITY FOR OTHER MERCHANTS OR OTHER MERCHANT STOREFRONTS USING THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY MERCHANT STOREFRONTS ON WHICH PRODUCTS ARE DISPLAYED THROUGH USE OF THE PLATFORM OR MERCHANTS OPERATING SUCH STOREFRONTS.
6. Indemnification.
6.1 Indemnification by Co-Op. Co-Op, at its sole expense, will defend Customer from and against any and all third-party claims, suits, actions or proceedings (each a "Claim"),and indemnify and hold harmless Customer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) ("Losses") that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Co-Op resulting from the Platform infringing any Intellectual Property Rights of any third party. Co-Op’s defense obligations do not extend to Claims, nor do its indemnification obligations extend to Losses, resulting from, arising in connection with, or relating to(a) any negligent or willful misconduct of Customer or any End Users or any of Customer’s other employees, contractors, users, and/or service providers(collectively, the "Customer Parties") or any third party, (b) any combination of the Platform (or any portion thereof) by any of the Customer Parties or any third party in combination with any equipment, software, data or any other materials not provided by Co-Op, (c) any modification to the Platform by any of the Customer Parties or any third party, (d) the use of the Platform by any of the Customer Parties or any third party in a manner contrary to the terms of this Agreement, (e) the continued use of the Platform after Co-Op has provided substantially equivalent non-infringing software or services, (f) any Customer Materials, or any Products or Customer services or other products, or(g) any act or omission of any of the Customer Parties.
6.2 Indemnification by Customer. Customer, at its sole expense, will defend Co-Op and its directors, officers, employees and agents ("Co-Op Indemnitees") from and against any Claims and indemnify and hold harmless Co-Op Indemnitees from any related Losses arising in connection with or relating to (a) any Products or Customer services or other products,(b) any negligence or willful misconduct by Customer or a party acting on its behalf, or (c) any alleged or actual breach of Customer’s obligations under this Agreement (including, but not limited to, any alleged or actual breach of any of Customer’s representations or warranties).
6.3 Infringement Claims; Sole Remedy. In the event of a Claim pursuant to Section 6.1, or if Co-Op believes such a Claim may be brought, Co-Op may, at Co-Op’s option and at Co-Op’s expense, (a) replace the Platform, (b) modify the Platform,(c) procure for Customer the right to continue using the Platform, or(d) terminate this Agreement upon 30 days written notice to Customer. SECTION 6.1 AND THIS SECTION 6.3 ARE CO-OP'S SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT ANY ALLEGED OR ACTUAL INFRINGEMENT,MISAPPROPRIATION, OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY BY CO-OP OR THE PLATFORM.
6.4 Procedures. The indemnifying party’s indemnification obligations under this Section 6 are conditioned upon the indemnified party (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under this Section 6 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party), and (c) providing reasonable cooperation to the indemnifying party, and at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
7. Limitation of Liability.
7.1 Consequential Damages Waiver. IN NO EVENT WILL CO-OP BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 Liability Cap. CO-OP'S ENTIRE LIABILITY TO CUSTOMER WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO CO-OP DURING THE APPLICABLE SUBSCRIPTION TERM WITHIN WHICH THE DAMAGES OCCURRED.
7.3 Failure of Essential Purpose and Additional Limitation. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 7 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TOHAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Term, Termination and Effect ofTermination.
8.1 Term. This Agreement commences on the Effective Date and, unless earlier terminated as set forth inSection 8.2, continues for the Initial Subscription Term. [On the expiration of the Initial Subscription Term, this Agreement will automatically renew for successive Subscription Terms equal in length to the Initial Subscription Term (each, a "Renewal Subscription Term")],unless either party provides written notice to the other party of its intent not to renew this Agreement no later than [30 days] before the expiration of the Initial Subscription Term or during the Renewal Subscription Term as set forth in Section 8.2.
8.2 Termination. Either party may terminate this Agreement during the Renewal Subscription Term by providing at least one month prior written notice to the other party. Additionally, either party may terminate this Agreement, for cause, if the other party materially breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach and, notwithstanding any terms to the contrary in this Agreement, Co-Op may suspend use of the Platform (or any portion thereof) without liability if Co-Op reasonably determines that (a) Co-Op is required by any applicable law to suspend the Platform or (b) Customer is in material breach of this Agreement.
8.3 Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, (a) all rights granted to Customer under this Agreement will immediately cease, (b) Customer will immediately pay to Co-Op all amounts due and payable up to the effective date of termination or expiration of this Agreement, and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, (i) Sections 2, 3, 5, 6, 7, 8.3, 9, 10, and 11 will survive any termination or expiration of this Agreement.
9. Additional Rights, Ownership, and Reservation of Rights. As between the parties and subject to the express grants within this Agreement, Co-Op owns all right, title and interest in and to the Platform (and any and all modifications to or derivative works of the Platform), the Usage Data(as defined below), the Feedback and any and all Intellectual Property Rights embodied in or related to the foregoing. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. For the purpose of thisAgreement, "Intellectual Property Rights" means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing. Customer acknowledges and agrees that Co-Op may create, monitor, collect, use and store analytic information, data and/or statistics regarding use of the Platform(collectively, "Usage Data").
10. Restrictions. Except as expressly authorized by this Agreement, Customer may not (a) modify, disclose, alter, translate or create derivative works of the Platform (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform (or any components thereof), (c) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or attempt to create the source code of the Platform or its structural framework (in whole or in part), or perform any process intended to determine the source code for the Platform, (d) use the Platform to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, I copy, frame or mirror any part or content of the Platform, (f) build a competitive product or service, or copy any features or functions of the Platform, (g) interfere with or disrupt the integrity or performance of the Platform, (h) attempt to gain unauthorized access to the Platform or their related systems or networks, (i) disclose to any third party any performance information or analysis relating to the Platform, (j) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Platform or the functionality of the Platform, (k) take any action that imposes an unreasonable or disproportionately large load on thePlatform, (l) use the Platform for any purpose that is illegal in any way or that advocates illegal activity, or (m) cause or permit any individual or entity to do any of the foregoing.
11. GeneralProvisions.
11.1 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
11.2 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in San Francisco,California in any litigation arising out of or relating to this Agreement.
11.3 Publicity. Notwithstanding any terms to the contrary in this Agreement, Customer consents to Co-Op’s use of Customer's name and logo on the Co-Op website and onCo-Op’s promotional and marketing related materials, identifying Customer as a customer of Co-Op and describing Customer's use of the Platform. On request from Co-Op, Customer will participate in a case study and related blog post with respect to its use of the Platform, provided that such case study and blog post will not be published until Co-Op has obtained Customer’s approval (and such approval will not be unreasonably withheld).
11.4 Third-Party Platforms. Customer acknowledges and agrees thatCo-Op uses third-party hosting infrastructures and/or other services in connection with the Platform ("Third-Party Platforms") and, notwithstanding any terms to the contrary in thisAgreement, Co-Op disclaims any liability with respect to any Third-PartyPlatforms. Customer agrees to abide by the terms and conditions provided by Co-Op with respect to any Third-PartyPlatforms.
11.5 Modifications. Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that Co-Op may modify features of the Platform from time to time at Co-Op’s sole discretion, provided that such modifications will not materially degrade the Platform.
11.6 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, Co-Op may freely assign this Agreement or any right or duty under this Agreement to an affiliate or to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or other transaction. This Agreement will be binding upon and enforceable against any successor or permitted assignee.
11.7 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
11.8 Notices. Any notice or communication required or permitted to be given hereunder will be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 10 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
11.9 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, (a) such invalidity, illegality or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and (b) such provision, in such jurisdiction, will be replaced by a valid, legal and enforceable provision that best reflects the parties’ intent for such first provision.
11.10 Audit. Co-Op may, by itself or through an independent third party, audit Customer’s use of thePlatform to verify (a) Customer's use of the Platform for purposes of calculating Fees and (b) that Customer is in compliance with the terms and conditions of this Agreement. Customer agrees to provide reasonable access to Customer’s systems and records for purposes of conducting these audits.
11.11 Counterparts. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format).
11.12 Maintenance and Modifications. Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that (a) Co-Op may conduct maintenance on the Platform from time to time without prior notice to Customer and (b) Co-Op may modify features of the Platform from time to time at Co-Op's sole discretion, provided that such modifications will not materially degrade the Platform.
11.13 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Co-Op, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
