Terms and Conditions

EVERTRUE MASTER SERVICES AGREEMENT
TERMS AND CONDITIONS

This MASTER SERVICES AGREEMENT  (the “Agreement”) is made as of the Effective Date set forth on the Customer Cover Sheet (the “Effective Date”) by and between EverTrue and the Customer, each of which are referred to herein as a “party” and collectively as the “parties”. The parties hereby agree as follows:

  1. Definitions.  In this Agreement, the following terms shall have the meanings set forth below:

    1. Customer Data” shall mean any data, information or material provided or submitted in its unaltered form by Customer (including, without limitation, Customer’s employees, agents and representatives) or Customer’s Users to EverTrue, in connection with using the Services or otherwise under this Agreement.
    2. Confidential Information” shall mean all confidential and proprietary information of a party (“Disclosing Party”) disclosed 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, including without limitation, Customer Data, Personal Information (as defined in Section 7.4), EverTrue Technology, other proprietary technology, business and technology processes and requirements, the terms of this Agreement (including pricing terms), product information, and financial information.  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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
    3. Documentation” shall mean EverTrue’s electronic instructions describing the functionality and use of the EverTrue App, the GivingTree App, and the EverTrue Console, and any information available on EverTrue’s website.
    4. EverTrue App” shall mean the EverTrue software application that is downloaded to a User’s device from an online application storefront.
    5. EverTrue Console” shall mean the online application made available to Users via the Internet for onboarding, ongoing management of Customer Data, and configuration of the GivingTree App and EverTrue App.
    6. GivingTree App” shall mean the GivingTree software application that is downloaded to a User’s device in order to allow a User to use the Services on behalf of the Customer.
    7. EverTrue Technology” shall mean all of EverTrue’s proprietary technology (including the EverTrue App, the GivingTree App, the EverTrue Console and other software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by EverTrue in providing the Services.
    8. Intellectual Property” shall mean all U.S. and foreign statutory and non-statutory intellectual property rights, including copyrights, patents, trademarks, service marks, registrations thereof and applications therefor; proprietary rights in information and data, including trade secrets and know how; and moral rights and other personal rights in inventions and original works.
    9. Record” shall mean data related to a unique constituent that Customer intends sharing with EverTrue.
    10. Service” or “Services” shall mean the services provided by EverTrue pursuant to this Agreement, including the customization and implementation services described at Section 2, access to the EverTrue Console, and the provision and use of the EverTrue App and GivingTree App, if applicable.
    11. Updates” shall mean the periodic updates, patches, fixes, maintenance releases and the like that EverTrue may automatically download or incorporate into the EverTrue Technology to ensure its ongoing functionality consistent with stated operational standards, as applicable.
    12. User” shall mean, in the case of the GivingTree App and the EverTrue Console, Customer’s employees, representatives, consultants, contractors or agents, in each case who are authorized to use the Services and have been supplied user identification and passwords by Customer or by EverTrue at Customer’s request, or, in the case of the EverTrue App, the Customer’s alumni.
  2. Implementation.

    1. Promptly after the Effective Date, Customer shall provide EverTrue with information, resources and assistance as necessary to enable EverTrue to customize and implement, as applicable, the EverTrue Technology for Customer’s purposes.  If any such customization and/or implementation involve interfacing or connecting the EverTrue Technology to any third party systems, Customer shall be responsible for ensuring that EverTrue has the right to connect to such third party systems, for obtaining the consent of the owner or controller of the Third Party System, for facilitating access to APIs and other interfaces, and for notifying EverTrue in writing of any conditions or restrictions that apply to such connection or interface.  EverTrue shall not be responsible for any defect or failure in the Services due to errors in the Customer Data or third party systems.
    2. If the customization or implementation of the EverTrue Technology described in Section 2.1 involve the incorporation of Customer’s name, logo or similar indicia (“Customer Marks”) into the EverTrue Technology, Customer hereby grants EverTrue the non-exclusive right and license to use and display the Customer Marks, solely during the Term, in furtherance of this Agreement, and for no other purpose.  EverTrue obtains no rights in the Customer Marks except for the limited right described in the preceding sentence, and Customer retains all right, title and interest in the Customer Marks.  All use of the Customer Marks by EverTrue shall inure to Customer.
  3. License and Restrictions.

    1. EverTrue hereby grants to Customer a non-transferable, non-exclusive, worldwide right to use the EverTrue Technology solely for the purposes of Customer’s community relations (including, without limitation, fundraising and development purposes), subject to the terms and conditions of this Agreement.  All rights pertaining to the EverTrue Technology not expressly granted to Customer are reserved by EverTrue and its licensors.
    2. Customer shall not: (i) use the Services except as expressly authorized by EverTrue; (ii) license, sublicense, sell, resell, transfer, assign, distribute, hypothecate, lease, loan or otherwise convey, commercially exploit or make available to any third party the Services or EverTrue Technology except as authorized in this Agreement;  (iii) knowingly send to EverTrue material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, or otherwise interfere with or disrupt the integrity or performance of the Services; (iv) modify the Services or the EverTrue Technology, incorporate the Services or EverTrue Technology in whole or in part in any other product or create derivative works based on all or part of the Services or EverTrue Technology; and (v) share, disclose, or otherwise distribute any EverTrue Confidential Information, except as provided for in Section 2.1.  For the avoidance of doubt, nothing contained herein shall preclude or prohibit Customer from making updates to Customer’s IT infrastructure, provided that any such activities do not conflict with the restrictions set forth in this Section 3.2.
    3. User logins are for authorized Users and cannot be shared or used by more than one individual User.
    4. As part of the Services, EverTrue shall make the EverTrue App available for download at no cost by Users.  When Users download the EverTrue App, they will be required to agree to an End User License Agreement which will protect EverTrue’s rights in the EverTrue App and allow use of the EverTrue App only for the purposes of the Services. For clarity, the parties agree that such End User License Agreement shall not materially conflict with the terms and conditions contained in this Agreement.
    5. As part of the Services, EverTrue shall make the GivingTree App and EverTrue App available for download by authorized Users.  When Users download the GivingTree App or EverTrue App, they will be required to agree to an End User License Agreement which will protect EverTrue’s rights in the GivingTree App and EverTrue App and permit use of the GivingTree App and EverTrue App only for the purposes of the Services. For clarity, the parties agree that such End User License Agreement shall not materially conflict with the terms and conditions contained in this Agreement.
  4. Support Services.

    1. EverTrue shall host the EverTrue Console on its or its third party provider’s servers and provide Customer and Users with access to the EverTrue Console via an application server web environment, as described in Section 7.6 below.  EverTrue shall use commercially reasonable efforts to provide access to the Services twenty-four (24) hours per day, seven (7) days per week, subject to scheduled maintenance and Force Majeure.  EverTrue will inform Customer at least twenty-four (24) hours in advance of any scheduled maintenance.  If access to the EverTrue Console becomes unavailable due to problems with the servers, EverTrue will diligently repair any such problems so as to maintain Customer’s ability to use the Services.
    2. Customer is responsible for backing up Customer Data.  Data transmission between Customer and third party systems and EverTrue via any network are exclusively Customer’s responsibility.  EverTrue assumes no responsibility for the reliability or performance of any data network or any data integrity, communications or connection problems Customer may experience that fall outside the EverTrue App or GivingTree App.  EverTrue does not guarantee against data loss or inaccuracies of Customer Data due to connectivity issues or Customer’s hardware failures.
    3. During the term of the Agreement, EverTrue shall supply Customer with access to email and telephone assistance in use of the Services and to resolve any failures of the Service.  Phone support and email support shall be available five (5) days a week, from Monday through Friday, from 9am – 5pm Eastern Standard Time.
  5. Fees and Renewal Billing.

    1. Customer shall pay EverTrue the charges set forth on the Cover Sheet. The License Fee is invoiced on the Effective Date, and the anniversary of the Effective Date in the event of any renewal of this Agreement.  All invoices are due and payable net thirty (30) days after receipt of EverTrue’s invoice.
    2. Customer shall be responsible for, and shall pay or reimburse EverTrue for, all applicable state, local, federal and governmental taxes, duties or charges of any kind that may be levied upon either party in connection with this Agreement except for taxes levied on EverTrue’s net income unless Customer is a tax-exempt entity. Customer will furnish proof of such status upon written request.
    3. If this Agreement is renewed in accordance with Section 11.1 of this Agreement, EverTrue shall send an invoice for the fees owed for the Renewal Term, as provided for in Section 5.1.  The renewal charge will be equal to the prior term’s License Fee, unless EverTrue has given Customer at least ninety (90) days’ prior written notice of a fee increase. Any such pricing increase shall not exceed seven percent (7%) above the prior term’s License Fee, unless the pricing in the prior term was designated in the Customer Cover Sheet as promotional or one-time.
  6. Ownership.

    1. The license granted to Customer does not convey any rights in the EverTrue Technology, express or implied, or ownership in the Service or any intellectual property rights thereto.  EverTrue (and its licensors, where applicable) shall retain all rights, title and interest, including in any intellectual property or other proprietary rights, in and to the EverTrue Technology and the Services, any derivative works or improvements thereof that are made by either party, or by any third party under contract with such party, and in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services, excluding always the Customer Data and Customer Marks.  The service marks, logos and product and service names associated with the Services are marks of EverTrue or third parties (collectively, the “Marks”).  Customer shall have the right to use and display such Marks for the purposes of the Services and promotion of the Services to Users, subject always to EverTrue’s trademark usage policies.  All use of the Marks, and any goodwill associated therewith, will inure solely to EverTrue.
    2. All title and intellectual property rights in and to the Customer Data and Customer Marks are owned exclusively by Customer, provided that EverTrue may freely use the Customer Data in an anonymous and aggregated form, without restriction.
    3. Without limitation of the foregoing, all technology, software or other material developed, invented, created or authored by any party in connection with the Services shall belong solely and exclusively to the developing party, including all Intellectual Property relating thereto.
  7. Confidential Information.

    1. Each party shall not disclose to any third party the other party’s Confidential Information and shall limit access and use to those of its employees and agents who require such access and use in connection with its rights and obligations under this Agreement.  Each party shall take appropriate action with its employees and agents to satisfy its obligations hereunder and shall protect the other’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care.
    2. The obligations set forth in this Section 7 shall not apply to information (a) previously known to the receiving party prior to disclosure by the disclosing party, (b) which is or becomes publicly known through no wrongful act of the receiving party, (c) received from a third party under no confidentiality obligation with respect to the Confidential Information, or (d) required to be disclosed under administrative or court order, or in an arbitration or litigation arising out of a dispute between the parties or their successors or assigns.  If a party is legally required to disclose any Confidential Information, that party shall, to the extent allowed and practicable, provide the other party prompt notice of such requirement so that the other party may seek a protective order or other appropriate remedy or waive compliance with respect to that disclosure.
    3. Each party agrees that, in addition to any other remedies available, the other shall be entitled to injunctive relief to enforce the terms of this Section 7.
    4. Each party is responsible for: (i) the security of non-public or personally identifiable information (“Personal Information”) on the systems under its control; and (ii) data security issues arising from its systems or directly resulting from its own third party vendors or subcontractors, if any, in connection with the Services.  Each party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Personal Information (collectively, a “Security Incident”).  In the event of a Security Incident involving the other party’s Personal Information, the affected party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Personal Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d), in the event Personal Information was compromised and it is reasonably suspected that such compromise could result in a breach of this Section 7, promptly notify the other party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation.
    5. Customer understands and agrees that EverTrue may use cookies, web beacons and/or other technologies to collect certain personally non-identifiable data in connection with this Agreement, which data may include, among other things, information such as Customer’s or User’s IP address, pages viewed by Customer or a User, date and time and domain type.  Such information, which is collected passively using various technologies, cannot be used to specifically identify Customer or any User. EverTrue may store such information itself or such information may be included in databases owned and maintained by EverTrue affiliates, agents or service providers. EverTrue may use such information and pool it with other information to track, for example, the total number of users of the EverTrue Platform, the number of visitors to each area or interactive object within the EverTrue Platform, and the domain names of any visitors’ internet service providers.
    6. The EverTrue Console is hosted on Amazon Web Services (AWS) infrastructure, which is ISO 27001 certified, and housed in Amazon-controlled data centers, which are secured with a variety of physical safety measures to prevent unauthorized access.  All data is held on servers located in Amazon-controlled data centers. In respect of any data that may be held from time to time in the United States, Amazon.com, Inc. and its controlled United States subsidiaries are participants in the Safe Harbor program developed by the United States Department of Commerce and the European Union. These Amazon Group companies have certified that they adhere to the Safe Harbor Privacy Principles agreed upon by the United States and the European Union.
    7. EverTrue will use commercially reasonable administrative, technical, and physical safeguards to prevent the unauthorized access, use or disclosure of data in violation of any applicable laws, including the Family Educational Rights and Privacy Act (“FERPA”). Customer acknowledges, however, that EverTrue cannot guarantee the security of such information given the nature of the internet.  Customer also acknowledges that by issuing user identifiers and passwords for its authorized end-users, Customer controls, defines and manages access to the data that will be used by Customer and its Users within the EverTrue Platform.  Customer is responsible for (i) compliance with all foreign and domestic privacy laws and regulations that may be applicable to Customer’s use of the EverTrue Platform, (ii) securing all necessary prior consents for the collection, storage, and use of data within the EverTrue Platform, and (iii) creation of, and compliance with, applicable policies regarding access and use by Users of any data.
  8. Warranty; General Obligations.

    1. EverTrue warrants that during the Term, the Services will perform substantially as described in accordance with the Documentation made available by EverTrue.  Customer’s sole remedy and EverTrue’s sole responsibility for any failure of the Services to conform to this warranty shall be EverTrue’s commercially reasonable efforts to modify the Services so as to conform to this warranty, or, if EverTrue is unable to do so, a pro-rated refund of the fees paid for the period of non-conformance of Services.  In the event of any uncured material breach of this warranty lasting longer than thirty (30) days, Customer may terminate this agreement in accordance with Section 11.2.
    2. Customer covenants that throughout the term of this Agreement, Customer shall be responsible for all activity occurring under Customer’s User accounts and shall: (a) comply with all applicable laws and regulations with respect to Customer’s use of the Services under this Agreement, including those related to data privacy and the transmission of technical or personal data; (b) only use the Services as contemplated by this Agreement; and (c) assume all liability for any unauthorized use of the Services by Customer and Customer’s employees, officers, affiliates and agents.  Customer acknowledge that EverTrue shall have the right, from time to time, to provide Updates or otherwise upgrade the Services.  Customer shall notify EverTrue immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
  9. Disclaimer of Warranties and Limitation of Liability.

    1. EXCEPT AS STATED IN SECTION 8.1, EVERTRUE PROVIDES THE SERVICES TO CUSTOMER “AS IS” AND DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  EVERTRUE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY EVERTRUE EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY FOR THE SERVICE, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.  EVERTRUE’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE.  IN ADDITION, EVERTRUE HEREBY DISCLAIMS ANY AND ALL LIABILITY PERTAINING TO (I) THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR (II) ANY IMPAIRMENT OR DISRUPTION OF CUSTOMER’S CONNECTION TO THE INTERNET OR ACCESS TO THE SERVICE.
    2. TO THE FULL EXTENT ALLOWED BY LAW, NEITHER CUSTOMER NOR EVERTRUE (AND ITS LICENSORS, WHERE APPLICABLE) SHALL IN ANY EVENT BE HELD LIABLE, WHETHER BASED UPON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF A PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO THIS AGREEMENT.
    3. EXCEPT FOR LIABILITY UNDER SECTIONS 7 (CONFIDENTIALITY) AND 10 (INDEMNIFICATION), THE MAXIMUM LIABILITY OF EVERTRUE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED, AND IN NO EVENT SHALL EVERTRUE’S LIABILITY EXCEED $1,000,000.  IN NO EVENT SHALL EVERTRUE’S LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
    4. NOTWITHSTANDING THE ABOVE, NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY TO THE OTHER FOR ACTS OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SUCH PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
  10. Indemnification.

    1. EverTrue shall indemnify Customer from and against claims that the Services or the EverTrue Technology infringe any third party’s U.S. Intellectual Property and all damages and costs awarded or paid in settlement and reasonable attorney’s fees with respect thereto, provided that Customer (a) promptly notify EverTrue of any such claim and cooperate with EverTrue in the defense thereof and (b) give EverTrue sole control of the defense and settlement of the claims. EverTrue will have no obligation with respect to any claim arising out of or based upon Customer Data, Customer Marks, Customer’s modification of the Services or use of the Services in a manner not permitted by this Agreement.
    2. If the Services or the EverTrue Technology or any part thereof provided under this Agreement is the subject of a claim, suit or proceeding for infringement of any U.S. Intellectual Property, or in the event of any adjudication that the Services or EverTrue Technology infringes upon any U.S. Intellectual Property, EverTrue, at its expense, shall (a) secure for Customer the right to continue using the Services or the EverTrue Technology or part thereof; (b) replace or modify the Services or the EverTrue Technology or part thereof to make it non-infringing; or (c) if reasonable efforts to achieve the foregoing are not available on commercially reasonable terms, either party shall have the right to terminate this Agreement upon written notice to the other party and EverTrue shall refund any fees prepaid to EverTrue for the period after such termination, provided that EverTrue’s obligation to refund such prepaid fees shall not impact Customer’s remedies against EverTrue for non-conforming Services under this Agreement.  For clarity, any changes made by EverTrue to the EverTrue Technology pursuant to the preceding sentence shall not impact EverTrue’s warranties to the Customer contained in this Agreement.
    3. Customer shall, at its own expense, indemnify and hold EverTrue, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any and all claims alleging that the Customer Data or Customer Marks, or any use thereof, infringes or violates the Intellectual Property rights, contract rights, or other rights of any third party.  EverTrue shall (a) promptly notify Customer of any such claim and cooperate with Customer in the defense thereof and (b) give Customer sole control of the defense and settlement of the claims.
  11. Term and Termination.

      1. Term.  This Agreement shall be effective as of the Effective Date and shall continue for the period set forth on the Cover Sheet (the “Initial Term”) and, upon expiration of the Initial Term, shall automatically renew for successive renewal terms of one (1) year (each successive renewal term, a “Renewal Term”) (collectively, the “Term”), unless (i) either party provides written notice of its intent not to renew prior to ninety (90) days before the expiration of the then-current term, or (ii) this Agreement is otherwise terminated in accordance with this Section 11.
      2. Termination for Breach; Suspension.  Either party may terminate this Agreement if the other party commits any material breach of this Agreement and fails to remedy the breach within thirty (30) days after written notice of the breach is given.  In the event that EverTrue fails to remedy the material breach within thirty (30) days after written notice of the breach is given, Customer will be entitled to reimbursement of a pro rata portion of the corresponding Annual License Fee (for example, if the Agreement is terminated on the sixth (6th) month anniversary of a Renewal Term, then one-half of the Annual License Fee paid by Customer to EverTrue corresponding to such Renewal Term shall be reimbursed to Customer).  In addition, if Customer is delinquent in making payments to EverTrue when due, EverTrue may suspend access to the Services.  Late payments shall be subject to interest of one percent (1.0%) per month on any outstanding balances, or the maximum allowed by law, whichever is less, in addition to all reasonable and customary expenses of collection.
      3. Handling of Customer Data  Upon Suspension/Termination.  Upon termination or suspension of the Services, all access of Customer and its Users to the EverTrue Technology and the Services shall cease.  If EverTrue is hosting Customer Data: (a) after the expiration of a reasonable period after termination, not less than ninety (90) days, subject to applicable law, EverTrue will irretrievably delete Customer Data; and (b) upon Customer’s written request within thirty (30) days of termination of this Agreement (other than by reason of Customer’s breach), EverTrue will make available to Customer a file of the Customer Data through a complete and secure (i.e. encrypted and appropriated authenticated) download, provided that Customer has paid in full all undisputed amounts owed to EverTrue.
  12. General.

    1. Compliance with Laws.  Each party shall comply with all applicable laws with respect to its performance under this Agreement.
    2. Publicity.  Customer acknowledges and agrees that EverTrue may identify Customer as a Customer of EverTrue, and may display Customer’s name and logo on EverTrue’s website for such purposes, for so long as this Agreement is in effect or until Customer revokes its consent in writing, whichever is earlier.
    3. Notices.  All notices and other communications under this Agreement will in writing and delivered by certified mail, with return receipt requested.  Notices to Customer will be delivered to Customer’s mailing address on record with EverTrue.  Notices to EverTrue will be delivered to EverTrue, Inc., 330 Congress St., 2nd Floor, Boston, MA 02210.  A notice will be deemed given upon the expiration of forty-eight (48) hours (if sent by mail or post).
    4. Entire Agreement.  This Agreement constitutes the entire agreement between the parties, and supersedes all prior oral or written agreements or communications, with regard to the subject matter described herein.  This Agreement may only be modified in writing, signed by both parties.
    5. Assignment.  This Agreement may not be assigned or transferred by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement to any successor or assign of its business, whether by merger, change of control, or sale of all or substantially all of its assets.  Subject to the prior sentence, any attempt to assign this Agreement or any rights hereunder without the prior written approval of the other party shall be null and void.
    6. Waiver and Severability.  Waiver by a party of any default by the other shall not be deemed a waiver of any other default.  If any term or condition of this Agreement is determined to be invalid or unenforceable in whole or in part for any reason,  this Agreement shall be reformed to be valid and enforceable consistent with the intention of the parties as expressed herein to the greatest extent permitted by law.
    7. No Third Party Benefits.  This Agreement is entered into solely for the respective benefit of the parties and their permitted successors and assigns, and nothing in this Agreement will be construed as giving any right, remedy or claim under this Agreement to any third parties.
    8. Force Majeure.  Neither party shall be in default to the extent that failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond its control, including acts of God, fire, natural disaster, war, terrorism, riot or other civil disturbance, outages of electrical, telecommunications or computer server hosting services, acts of government or labor strikes or lockouts (“Force Majeure”), provided that such party shall use its best efforts to overcome any such Force Majeure.
    9. Governing Law; Jurisdiction and Venue.  This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of laws. Customer hereby expressly consent to the personal jurisdiction of the state and federal courts located in Boston, Massachusetts for any action or proceeding arising from or relating to the Agreement
    10. Relationship of the Parties.  The relationship of the parties shall be that of independent contractors.  Nothing herein shall be construed to create any agency, partnership, joint venture or similar relationship or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated herein.  Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of or in the name of the other party, or to bind the other party in any matter or thing whatsoever.