Terms of Service
WHEREAS, Codecademy provides the service set forth on the Order Form, which it makes available on a hosted basis; and WHEREAS, Customer desires to license the hosted service on behalf of its Authorized Users as set forth on the Order Form to which these Enterprise Terms and Conditions are attached, and Codecademy desires to grant a license to use such hosted services in accordance with the terms set forth in this Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements in this Agreement, the parties hereby agree as follows:
- “Authorized Users” means those users who access and use the Codecademy Service on behalf of Customer.
- “Codecademy Service” means the hosted service described on the Order Form.
- “Customer Content” means text, images, profile information, academic content, data, video, audiovisual content, works of authorship or other types of materials, or hyperlinks to any of the foregoing, Customer or Customer’s Authorized Users provide, post, upload, publish, transmit, or distribute on or through the Codecademy Service.
- “Launch Date” means the date on which Codecademy will make the Codecademy Service available to Customer’s Authorized Users and on which the Authorized Users may begin accessing the Codecademy Service.
- “Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including, but not limited to, all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction, that apply to either of the parties.
2. Provision of the Codecademy Service
- Access to the Codecademy Service. Beginning on the Launch Date and subject to the terms and conditions of this Agreement (including, without limitation, any Authorized User limitations set forth in the Order Form), Codecademy hereby grants to Customer during the Term, exercisable through its Authorized Users, a limited, nonexclusive, nontransferable right and license, without the right to sublicense, to access and use the Codecademy Service solely as permitted by the features of the Codecademy Service. Except Customer Content, Codecademy alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Codecademy Service and any suggestions, ideas, enhancement requests, feedback, or recommendations, or other information provided by Customer or any third party or Authorized User concerning or relating to the Codecademy Service (“Feedback”), which are hereby assigned to Codecademy. The parties agree that the Codecademy Service shall be made available solely on a hosted basis and is licensed, not sold, to Customer.
- Restrictions. Customer (including, without limitation, its Authorized Users) will not, and will not permit any third party to: (a) access or use the Codecademy Service except as permitted hereunder; (b) use the Codecademy Service as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Codecademy Service or any copy thereof to any third party; (d) misappropriate any data or information from the Codecademy Service; (e) disrupt the functioning of the Codecademy Service; (f) act in a manner that interferes with Codecademy’s operation of the Codecademy Service or with the use of the Codecademy Service by others; (g) gain or grant any unauthorized access to the Codecademy Service; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Codecademy Service or any security technology, software, or rights management information contained within the Codecademy Service or in any software used to enable the Codecademy Service; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Codecademy Service; (j) access or use the Codecademy Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (k) exploit the Codecademy Service in any unauthorized way whatsoever, including, without limitation, by trespass or burdening server or network capacity or Codecademy Service infrastructure (including, but not limited to, transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Codecademy Service infrastructure); or (l) attempt, or encourage or assist any third party to do, any of the foregoing. Customer is responsible and liable to Codecademy for all activity that occurs through or in connection with Customer’s accounts.
- Liability for Authorized Users. The Customer shall be solely responsible for any and all acts and omissions of the Authorized Users and hereby represents that Customer has a lawful basis to transfer any Customer Content or Authorized User information to Codecademy under Applicable Law. The Customer will require any and all Authorized Users to comply with the applicable terms of this Agreement. ANY ACTS OR OMISSIONS OF AN AUTHORIZED USER (INCLUDING, WITHOUT LIMITATION, ANY BREACH BY AN AUTHORIZED USER OF ANY TERMS OR CONDITIONS OF THIS AGREEMENT) SHALL BE DEEMED AN ACT, OMISSION, OR BREACH BY THE CUSTOMER AND SHALL BE ENFORCEABLE BY CODECADEMY AGAINST THE CUSTOMER.
- Independent Controller. The parties agree that, unless otherwise agreed upon between the parties, under this Agreement both Codecademy and Customer will be considered independent Controllers and independent Businesses in relation to the use and Processing of Personal Information (as such terms are defined in Applicable Laws). Notwithstanding anything to the contrary herein, in no event will Codecademy and Customer be deemed to be jointly controllers of the Personal Information shared by Customer with Codecademy. Each of Codecademy and Customer is responsible for its handling, Processing, and use of Personal Information in accordance with an appropriate lawful basis and in accordance with all Applicable Laws.
- Third-Party Software. All or some portions of the Codecademy Service may be subject to additional and/or separate terms and conditions, including, but not limited to, open source software license and other third-party software license terms and conditions (“Third-Party Software”). Notwithstanding anything in this Agreement to the contrary, to the extent that any such Third-Party Software is distributed by Codecademy to Customer, all such Third-Party Software is made available on an “as is” basis without warranty of any kind. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Software and this Agreement, the Third-Party Software terms and conditions shall control.
- Ownership. As between Codecademy and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Content; and (b) Codecademy owns all right, title and interest in and to the Codecademy Service, including, but not limited to, all intellectual property and other proprietary rights therein and thereto including any Feedback as assigned to Codecademy in accordance with Section 2.1 above.
3. Authorized User Fees; Payment
- Fees. Subject to the terms and conditions of this Agreement and the applicable Order Form, Customer shall pay the Authorized User Fees set forth in the applicable Order Form in accordance with the payment terms set forth therein. All Authorized User Fees are deemed earned by Codecademy upon receipt of payment and are nonrefundable except as otherwise set forth in this Agreement or required by applicable Law.
- Late Payments. Overdue payments by Customer will be subject to interest at the rate of 1-1/2% per month, or the maximum allowable under applicable Law, whichever is less, and Customer will indemnify and hold Codecademy harmless from and against any costs incurred in connection with its collection of any Authorized User Fees or interest properly due hereunder.
- Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including, but not limited to, value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Codecademy’s net income. If Codecademy has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Codecademy with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Authorized User Fee Modifications. Codecademy may, in its sole discretion, increase or otherwise modify the fees for each Renewal Term by providing Customer notice of changes to the fees at least ninety (90) days prior to the end of the then-current term. If Customer does not agree to the new or changed fees, Customer may exercise its right not to renew the Agreement.
- Codecademy subscriptions renew automatically using the payment details on file for your account. If you purchase a subscription with automatic renewal, you acknowledge and agree that we are authorized to use the payment information on file for the renewal fee. Until you cancel, your subscription will renew annually on the same day of the month or year, respectively, as the date you made your initial purchase and the payment information on file will be billed for the then-current subscription fee. This purchase date will be included on your subscription confirmation receipt that will be emailed to you at the email you provide. To disable auto-renew please talk to your Codecademy Account Manager.
- Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which: (a) if disclosed in writing, is designated in writing as proprietary and/or confidential; (b) if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure; or (c) should reasonably be understood to be confidential by the recipient given the nature of the information and/or the circumstances of disclosure (the “Confidential Information”). Notwithstanding any failure to so designate them, the Codecademy Service, and the terms and conditions of the Agreement shall be Codecademy’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party created at the time of such independent development; (iii) is or otherwise becomes known to the receiving party through no wrongful conduct of the receiving party, as demonstrated by written records in existence prior to such disclosure by the disclosing party; and (iv) required to be disclosed by Law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
5. Term and Termination
- Term. Unless earlier terminated in accordance with this Section 5, this Agreement shall be effective as of the Effective Date listed in the Order Form and shall continue through the Term set forth on the Order Form.
- Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; (b) if the Codecademy Service becomes, in its entirety, subject to the circumstances described in Section 7.2(iii); or (c) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
- Effect of Termination. Upon the expiration or termination of this Agreement: (a) except as expressly set forth herein, all rights and licenses granted by a party to the other party shall terminate; (b) any and all unpaid amounts due to Codecademy shall become immediately due and payable; (c) each party shall return or destroy the other party’s Confidential Information; and (d) Sections 1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 3.3, 4.1, (for five (5) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Law), 5.3, 6.2, 6.3, 7.1 (solely with respect to claims arising during the Term), 7.2, 7.3, 7.4, 7.5, 7.6, 8, and 9 shall survive expiration or termination of this Agreement. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.
6. Representations and Warranties.
- Performance Warranty; Sole and Exclusive Remedy. Codecademy hereby represents and warrants to Customer that: (i) during the Term the functionality of the Codecademy Service will not be materially decreased from the functionality of the Codecademy Service available as of the Effective Date of the Order Form (the “Performance Warranty”); and (ii) the Codecademy Service will not result in any violation of Laws or willful infringement or misappropriation of any rights of any third party, including, without limitation, any intellectual property right or privacy right. Customer’s sole and exclusive remedy for Codecademy’s breach of its Performance Warranty will be Codecademy to correct the breach of it’s Performance Warranty.
- Customer Representations and Warranties. Customer hereby represents and warrants that: (a) it shall and its use of the Codecademy Service will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents to submit, transmit, provide, receive, access, and/or use its Customer Content, and any other content or information it provides, receives, accesses, and/or uses through or in connection with the Codecademy Service; (c) it is solely responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with the Customer Content; and (d) the Customer Content and Codecademy’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Law or infringement or misappropriation of any rights of any third party, including, without limitation, any intellectual property right or privacy right, (ii) any liability from Codecademy to any third party, or (iii) the payment by Codecademy of any fees to any third party.
- Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (I) EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) THE PARTIES AGREE THAT THE CODECADEMY SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND CODECADEMY MAKES NO OTHER WARRANTY AS TO THE CODECADEMY SERVICE, TITLE, AND NON-INFRINGEMENT.
- Codecademy Indemnity. Codecademy shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third-party to the extent based upon a claim that the Codecademy Service infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Codecademy may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
- Codecademy Options. Should the Codecademy Service become, or in the opinion of Codecademy be likely to become, the subject of such an infringement claim, Codecademy may, at its option: (i) procure for Customer the right to use the Codecademy Service at no cost to Customer; (ii) replace or modify, in whole or in part, the Codecademy Service to make it non-infringing; or (iii) if neither (i) nor (ii) are, in Codecademy’s sole and absolute discretion, commercially practicable, accept return of the Codecademy Service, or remove the allegedly offending module thereof, and, refund the Fees paid for such Codecademy Service or module by Customer, less an amount determined by multiplying the Fees paid for such Codecademy Service or such module during the then-current subscription term by a fraction, the numerator of which is the number of months during the then-current subscription term during which Customer had use of the Codecademy Service and the denominator of which is the total number of months during the then-current subscription term.
- Exclusions from Codecademy Indemnity. Codecademy assumes no liability hereunder for: (i) any method or process in which the Codecademy Service may be used; (ii) any compliance with Customer’s specifications; or (iii) the combination, operation or use of the Codecademy Service with non-Codecademy programs or data, and Customer shall indemnify and hold harmless Codecademy and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (i) through (iii) (inclusive) above.
- Customer Indemnification. Customer shall defend, indemnify, and hold harmless Codecademy and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, attorneys’ fees) arising from or relating to: (a) Codecademy’s ingestion, commingling, processing, use, or distribution of the Customer Content as permitted hereunder; or (b) Customer’s or its authorized users’: (i) use of and access to the Codecademy Service in a manner inconsistent with this Agreement and any documentation provided in connection with the Codecademy Service; (ii) breach of Sections 2, or 6.2; or (iii) Customer’s negligence or willful misconduct.
- Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
- Sole Remedy for Infringement. THIS SECTION 7 SETS FORTH CODECADEMY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE CODECADEMY SERVICE AND THIS AGREEMENT.
8. Limitation of Liability.
- Liability Caps. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CODECADEMY HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
- Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 6, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 2 or 6.2; (b) either party’s breach of its confidentiality obligations under Section 4; (c) either party’s indemnification obligations under Section 7; and (d) the gross negligence or willful misconduct of either party or its agents. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy
- Assignment. No party may assign any of its rights under this Agreement or delegate its performance under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld; except that either may assign its rights and delegate its performance under this Agreement to (i) an entity that acquires all or substantially all of its assets, (ii) any corporation or other business entity controlled by, controlling, or under common control with that party, or (iii) the successor in a merger, acquisition, or reorganization. Subject to this Section 9.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
- Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 9.2 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
- Governing Law; Venue. In all respects this Agreement will be governed by the Laws of the State of New York, without regard to its conflict of Law principles. Other than petitions for injunctive or equitable relief, which may be brought in any court of competent jurisdiction, any claim or cause of action in connection with this Agreement will only be brought into a court of competent jurisdiction within New York City, New York. The parties hereby irrevocably consent to the exclusive jurisdiction of such courts.
- Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall 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.
- Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), when delivered by electronic mail to the electronic email address set forth on the Order Form for Customer or to email@example.com for Codecademy, or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified on the Order Form or such other address or electronic email address as either party may specify in writing.
- U.S. Government Restricted Rights. If the Codecademy Service is being licensed by the U.S. Government, the Codecademy Service is commercial computer software developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
- Export Law Assurances. Customer understands that the Codecademy Service is or may be subject to export control Laws. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE CODECADEMY SERVICE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE CODECADEMY SERVICE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
- Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
- Costs. If any action at Law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
- Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. No online (click wrap, browse wrap, or other) posted terms, nor any ordering documents, apply. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under applicable Law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.