Swoogo Master Subscription Agreement

1. DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means the documents for placing orders for the Services hereunder that are entered into between You and Us, including addenda and supplements thereto. Order Forms shall be deemed incorporated herein by reference.

“Sensitive Data” means (i) Social Security number, passport number, driver’s license number or similar identifier; (ii) financial account information, (iii) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, or data revealing sex life or sexual orientation; (iv) a minor’s Personal Data; (v) precise geolocation data; or (vi) health or medical information.

“Services”  means the products and services offered by Us under the name(s), “Swoogo” or successor branding, that You order under an Order Form and We make available online via password-protected customer login, including programmatic access via the Application Programming Interface (API). The “Services” exclude Non-Swoogo Services (as defined in Section 3). 

“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to the Services have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business. 

“We,” “Us” or “Our” means Swoogo LLC, a Delaware limited liability company.

“You” or “Your” means the company or other legal entity on whose behalf you are executing this Agreement, and Affiliates of that company or entity. If You are an agency purchasing SERVICES on behalf of Your clients, the terms “You” or “Your” shall include such clients, provided that You shall be responsible for such clients’ compliance with Your obligations under this Agreement for any breach of those obligations by such clients, and for payment for purchases of the Services on behalf of such clients.“Your Data” means any electronic data, content or information that has not been made publicly available, is owned or licensed by you, and is submitted to Swoogo by You or on Your behalf.

2. USE OF THE SERVICES

2.1. Our Protection of Your Data. We shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data; (b) disclose Your Data except as compelled by law in accordance with Section 6.3 (Compelled Disclosure) or as expressly permitted in writing by You; or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

2.2. Your Responsibilities. 

(a) You shall: 

(i) be responsible for Users’ compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data; 

(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use; 

(iv) use the Services only in accordance with this Agreement and applicable laws and government regulations; and

(v) be solely responsible for compliance with all state and federal laws and regulations, and all applicable card association rules and regulations which apply to Your transactions with Your customers. 

(b) You shall not: 

(i) make the Services available to anyone other than Users, except as expressly permitted in an Order Form; 

(ii) sell, resell, rent, lease, or create derivative  works based on, the Services; 

(iii) use the Services to store or transmit infringing, defamatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; 

(iv) use the Services to store or transmit Malicious Code; 

(v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;

(vi) generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements, or other solicitations (“spam”);      

(vii) Perform unauthorized Audits and Inspections, including, but not limited to, security scans and/or pen tests performed by unapproved entities.  To request an audit or inspection, including the annual audit as provided in the Data Processing Agreement, you must notify Swoogo at least three (3) weeks in advance of the proposed Audit or Inspection date via written request to [email protected].  

(viii) attempt to gain unauthorized access to the Services or their related systems or networks;

(ix) use the Services for the purpose of serving as a factor in establishing an individual’s eligibility for credit, employment or insurance, or for any other consumer-initiated transaction as defined in the U.S. Fair Credit Reporting Act; 

(x) submit to Swoogo or use the Services to collect, store or process any Sensitive Data, including, without limitation: (i) social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government-issued identification numbers, (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended) or similar information under other comparable laws or regulations, or (iii) financial account information (including, but not limited to, bank account number and routing number, bank account-related access or security codes or passwords), or Nonpublic Personal Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended)(“GLBA”) or similar information under other comparable laws or regulations, but excluding credit card information; or 

(ix) reverse engineer the Services. 

FINALLY, YOU SHALL ENSURE THAT NO TWO USERS USE THE SAME LOGIN CREDENTIALS TO ACCESS THE SERVICES, AND THAT NO USER SHARES HIS OR HER LOGIN CREDENTIALS WITH ANOTHER INDIVIDUAL OR USER. IF WE DETERMINE THAT MORE THAN ONE USER IS USING THE SAME LOGIN CREDENTIALS TO ACCESS THE SERVICES, WE HAVE THE RIGHT, AT OUR SOLE DISCRETION, TO TERMINATE THIS AGREEMENT IMMEDIATELY UPON NOTICE TO YOU, WITH NO REFUND OF AMOUNTS PAID PRIOR TO THE DATE OF TERMINATION.

3. NON-SWOOGO SERVICES

3.1. Non-Swoogo Products and Services. We or third parties may from time to time make available to You third-party products or services, including but not limited to non-Swoogo applications and implementation, customization, and other consulting services (“Non-Swoogo Services”). These Non-Swoogo Services may be purchased through an Order Form, pursuant to which we will bill you for the cost of such products or services.  Use of such Non-Swoogo Services will terminate with the termination of this Agreement. We do not endorse, warrant or support Non-Swoogo services, whether or not they are designated by Us as “certified” or otherwise, unless and only if otherwise specified in an Order Form. We will not be a party to, or be responsible for monitoring, any interaction or transaction between you and any Non-Swoogo Services provider.  We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Swoogo Service or its provider. If You choose to use any Non-Swoogo Service in conjunction with the Services,  You grant us permission to allow the Non-Swoogo Service and its provider to access Your data as required for the interoperation of that Non-Swoogo Service with the Services. Subject to Section 3.2 (Integration with Non-Swoogo Applications), no purchase of Non-Swoogo Services or any other product is necessary to use the Services except a supported computing device, operating system, web browser, and Internet connection.

3.2. Integration with Non-Swoogo Applications. The Services may contain features designed to interoperate with non-Swoogo applications. To use such features, You may be required to obtain access to such non-Swoogo applications from their providers. If the provider of any such non-Swoogo application ceases to make the non-Swoogo application available for interoperation with the corresponding Swoogo features on reasonable terms, We may cease providing such Swoogo features, and You will not be entitled to any refund, credit, or other compensation. 

4. FEES AND PAYMENT FOR SERVICES

4.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as, and solely to the extent otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are billed annually, beginning on the subscription start date and each anniversary thereof.

4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. Payments by cash or check are not accepted. Credit card payments are subject to a maximum threshold that is determined by our payment processor or by Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased Subscriptions). Such charges, and any invoices for payments by a method other than a credit card, shall be paid before We begin providing Services for the initial subscription term.  You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. 

4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4. Suspension of Service. If any amount owing by You under this or any other agreement for the Services is overdue, We may, without limiting Our other rights and remedies, suspend the Services until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 11.1 (Manner of Giving Notice), before suspending services to You.

4.5. Payment Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

5. PROPRIETARY RIGHTS AND DATA PRIVACY

5.1. Reservation of Rights in the Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5.2. Your Data. As between You and Us, You shall own all Your Data, as uploaded or otherwise input into the Service, and all intellectual property rights therein. During the term of this Agreement, You grant to Us the right to use Your Data to provide feedback to You concerning Your use of the Service.  You hereby grant to Us the right to anonymize Your Data such that the data cannot relate to or identify You, Your clients, or any individual, company or organization therefrom (“Anonymized Data”).  Swoogo shall own Anonymized Data and the parties agree that You have no right, title or interest to such Anonymized Data.

5.3. Suggestions. You hereby grant to Us a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided to Us by You, including Users, relating to the operation of the Services.

5.4. Data Privacy. You represent and warrant that your use of the Services will comply with all applicable laws and regulations. You are responsible for determining whether the Services are suitable for You in light of your obligations under applicable laws, such as the Health Insurance Portability and Accountability Act and the Health Information Technology for Economic and Clinical Health Act as amended (“HIPAA”), the Gramm-Leach-Bliley Act of 1999 as amended (“GLBA”), or data protection laws, such as the General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA). We will not be liable if the Services, as configured and deployed by You, do not meet those requirements. To the extent required by applicable laws, You acknowledge and agree that You are responsible for ensuring that any necessary notices with respect to and consents to the processing We conduct as part of the Services are obtained. 

You acknowledge and agree that you are prohibited from uploading to the Services: (i) Social Security numbers, passport numbers, or other government-issued identification; (ii) protected health information as defined by HIPAA; (iii) Nonpublic Personal Information; or (iv) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, or data revealing sex life or sexual orientation.

To the extent We process Your Personal Information (as defined in the Data Processing Addendum attached hereto) protected by Data Protection Laws (as defined in the Data Processing Addendum) as a processor on your behalf, You and Swoogo shall be subject to and shall comply with Swoogo’s Data Processing Addendum, which is incorporated into and forms an integral part of this Agreement. The Data Processing Addendum sets out Your obligations with respect to data protection when processing Your Personal Information on Your behalf in connection with the Services. 

6. CONFIDENTIALITY

6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include, without limitation, the Services; and Confidential Information of each party shall include, without limitation, the terms and conditions of this Agreement and the contents of all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

6.2. Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. WARRANTIES AND DISCLAIMERS

7.1. Our Warranties. We warrant that: (i) We have validly entered into this Agreement and have the legal power to do so; (ii) subject to Section 3.2 (Integration with Non-Swoogo Applications), the functionality of the Services will not be materially decreased during a subscription term; and (iii) We will not transmit Malicious Code to You, provided, however, that We are not in breach of this subpart (iii) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination) below.

7.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SWOOGO MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SWOOGO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 

7.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-GA Services”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction, or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “ SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.

8. MUTUAL INDEMNIFICATION

8.1. Indemnification by Us. We shall defend and indemnify You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event We receive information regarding a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate or violate any applicable laws, We may in Our discretion (i) modify the Services so that they no longer infringe or misappropriate third party rights or fail to comply with any applicable law, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services, at no cost to You, in accordance with this Agreement, (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid subscription fees covering the remainder of the term of such User subscriptions after the effective date of termination, or (iv) require that You immediately, upon receipt of notice from Us, discontinue all use of any Non-Swoogo Services or Your Data that may be related to an actual or potential Claim Against You or violation of law, and, to the extent not prohibited by law, delete from Your systems any such Non-Swoogo Services or delete or permit Us to delete from the Services, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third-party claimant. We shall have no obligation to indemnify You to the extent any Claim Against You arises from, or in connection with, any Non-Swoogo Services, or Your material breach of the terms of this Agreement. 

8.2. Indemnification by You. You shall defend and indemnify Us against any claim, demand, suit or proceeding made or brought against Us by a third party arising out of or related to Your breach of Your obligations under this Agreement or any representation or warranty made by You herein, and or alleging that Your Data, or Your use of any Non-Swoogo Services, or your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property or privacy rights of a third party or otherwise violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense. In the event We receive information regarding an actual or potential Claim Against Us, We may, in Our discretion, require You to immediately, upon receipt of notice from Us, discontinue all use of any Non-Swoogo Services  or Your Data that may be related to an actual or potential Claim Against Us and, to the extent not prohibited by law, delete from Your systems any such Non-Swoogo Services or delete or permit Us to delete from the Services, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third-party claimant.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

9. LIMITATION OF LIABILITY

To the maximum extent permitted by law, neither party shall be liable for any lost profits, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or customer’s use of, or inability to use, the services, regardless of the form of action, even if Swoogo has been advised of the possibility of such damages. Each party’s aggregate maximum liability to the other shall be limited to fees paid or payable to Swoogo by customer for the services in the twelve (12) months immediately preceding the claim. The existence of more than one claim will not enlarge this limit.

10. TERM AND TERMINATION

10.1. Term of Agreement. The term of this Agreement commences as of the date an Order Form has been signed by both You and Us, and continues until all subscriptions, including any renewal terms, have expired or been terminated. 

10.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein.  

10.3. Termination for Cause. A party may terminate this Agreement only for cause, which means: (i) failure by the other party to cure a breach of this Agreement within 30 days after receiving written notice of such breach from the non-breaching party, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  

10.4. Refund or Payment upon Termination. Upon any termination for cause by You in accordance with Section 10.3, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.5. Deletion of Your Data. Upon termination or expiration of this Agreement, at Your direction, Your Data will be returned or deleted from the Services, except that: (1) Swoogo may retain a copy of Your Data, subject to the confidentiality requirements of this Agreement and applicable laws, as required for regulatory, audit or legal compliance purposes, and may not be used for any other purpose, and (2) Swoogo may retain Your Data for backup or archival purposes in accordance with Swoogo’s ordinary back-up or document retention policies (for up to one year) so long as such archival or backup data is maintained in accordance with the requirements of this Agreement and applicable law. Prior to termination or expiration of the Agreement, We will enable You to delete Your Data directly within the Services.

10.6. Surviving Provisions. 4 (Fees and Payment for Services), 5 (Proprietary Rights and Data Privacy), 6 (Confidentiality), 7 (Warranties and Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Deletion of Your Data), 11 (Notices, Governing Law and Jurisdiction), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

11. NOTICES, GOVERNING LAW AND JURISDICTION

11.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the first business day after sending by email (provided email shall require confirmation for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be sent to the address set forth on the Order Form below your signature.  All notices to us shall be sent to the address set forth on the Order Form below our signature.

11.2. Governing Law.  This Agreement will be interpreted under and governed by the laws of the State of Delaware without regard to its conflicts of law principles. 

12. GENERAL PROVISIONS

12.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Russia, Sudan, or Syria) or in violation of any U.S. export law or regulation.

12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment).  

12.7. 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 (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. 

12.8. Marketing. You grant to Us the right to use Your service marks, trade names, logos, symbols, or brand names on our website and in marketing materials.

12.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum, or Order Form shall prevail.