This Software-as-a-Service Agreement (“Agreement”) is entered into by the entity (“Customer”) identified in the order form that accompanies this Agreement (“Order Form”) and Bananatag Systems Inc. (“Bananatag”) and governs Customer’s access to and use of the Bananatag software-as-a-service solution (the “Bananatag Service”). Each of Customer and Bananatag is a “Party” and are, collectively, the “Parties”.
1. SUBSCRIPTION
1.1 Access and Use: Bananatag grants Customer the right to: (i) access and use the Bananatag Service during the Term solely for Customer’s internal communications; (ii) copy and use the Documentation during the Term solely as required for Customer’s use of the Bananatag Service; and (iii) access and use any statistical data Customer downloads from the Bananatag Service solely for Customer’s internal business purposes, all in accordance with and subject to the obligations and restrictions in this Agreement (including the obligations and restrictions in the Order Form). Customer may allow any entity that Customer owns or of which it controls more than 50% of the voting securities (“Affiliate”) and Customer’s and its Affiliate’s authorized employees and contractors (each such Affiliate, employee and contractor is an “Authorized User”) to use the Bananatag Service, provided that: (i) Customer causes each Authorized User to use the Bananatag Service in accordance with this Agreement; and (ii) Customer remains liable for each Authorized User’s use of the Bananatag Service and compliance with this Agreement as if the Authorized User was Customer.
1.2 Fees: Customer will pay Bananatag the fees in the Order Form (“Fees”) in accordance with the Order Form. If Customer fails to pay the Fees when due, Bananatag may send Customer a written notice of the overdue invoice to the billing email provided on the Order Form. If Customer fails to pay such invoice within 10 business days of Bananatag sending the notice, Bananatag may: (i) suspend Customer’s access to the Bananatag Service until such invoice is paid; or (ii) terminate this Agreement.
2. INTELLECTUAL PROPERTY
2.1 Customer’s Proprietary Rights: As between Bananatag and Customer, Customer owns all right, title and interest in and to: (i) materials, such as images, text and fonts, Customer uploads to the Bananatag Service; (ii) information and data processed or collected by Bananatag on Customer’s behalf; (iii) any downloadable output or reports resulting from Customer’s use of the Bananatag Service; and (iv) custom designed email templates created by Bananatag for Customer as set out in the Order Form, (collectively, “Customer Materials”). Customer grants to Bananatag a sublicensable, transferable, limited, non-exclusive right to use the Customer Materials only as necessary to provide the Bananatag Service and to anonymize and aggregate metrics and data related to the Customer Materials and Customer’s use of the Bananatag Service (“Anonymized Aggregated Data”), provided that the Anonymized Aggregated Data does not contain any of Customer’s Confidential Information (as defined below) and cannot be used to identify Customer or Customer’s business, clients, consumers, personnel or any other identifiable individual. Bananatag may use Anonymized Aggregated Data to deliver, modify, update, correct and improve the Bananatag Service. Customer represents and warrants that it has the rights, waivers and consents necessary to provide Bananatag with the Customer Materials and Feedback (as defined below) and for Bananatag’s use of the Customer Materials and Feedback as contemplated by this Agreement.
2.2 Bananatag’s Proprietary Rights: As between Bananatag and Customer, Bananatag owns all right, title and interest in and to: (i) the Bananatag Service; (ii) the documentation supplied with the Bananatag Service (“Documentation”); and (iii) all Intellectual Property Rights pertaining to the Bananatag Service and Documentation (collectively, “Bananatag Intellectual Property”) and Customer will not to take any action(s) inconsistent with such ownership interests. Except as expressly provided in this Agreement, Customer will not acquire any rights or licenses in or to the Bananatag Intellectual Property. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
2.3 Feedback: Customer and its Authorized Users may suggest corrections, changes and modifications to Bananatag’s products and services, including the Bananatag Service (all such corrections, changes and modifications, excluding Customer Materials and Customer Confidential Information contained therein, “Feedback”). Bananatag may use and disclose Feedback for any purpose without notice or compensation to Customer. Customer hereby assigns to Bananatag all right, title and interest (including any Intellectual Property Rights, excluding trademark rights) in and to the Feedback.
2.4 Restrictions: Customer acknowledges that the source code for the Bananatag Service and other trade secrets embodied in the Bananatag Service are not intended to be disclosed to Customer. Customer will not directly or indirectly: (i) distribute, copy, adapt, create derivative works of, translate, localize, port or otherwise modify Bananatag Intellectual Property, including the Bananatag Service(excluding the Documentation, which Customer may copy and distribute internally as required to use it accordance with Section 1.1); (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer Bananatag Intellectual Property, including the Bananatag Service; (iii) use any means to discover the source code of the Bananatag Service; (iv) otherwise circumvent any technological measure that controls access to the Bananatag Service; or (v) authorize or assist any third party to engage in any of the acts described in clauses (i) to (iv).
2.5 Usage Verification: Bananatag may verify Customer’s usage of the Bananatag Service to ensure compliance with the terms of this Agreement, including the Order Form. Any such verification will be conducted remotely and will not interfere unreasonably with Customer’s use of the Bananatag Service. If a verification reveals that Customer is using the Bananatag Service beyond the scope of rights granted in this Agreement (for example, in excess of the restrictions in the Order Form) and Bananatag provides to Customer reasonable evidence to demonstrate such non-compliance, then, in addition to any other remedies available to Bananatag, at Bananatag’s request, Customer will promptly execute an Order Form or amendment for excess usage and pay Bananatag the underpaid Fees associated with the over use based on Bananatag’s then-current list rates.
3. SUPPORT AND ENHANCEMENTS
3.1 Support: Bananatag will provide support for the Bananatag Service as set out in the Service Level Agreement located at: https://bananatag.com/service-level-agreement/ (the “Service Level Agreement”). Bananatag may modify the Service Level Agreement, subject to the limits in Section 15.2. Bananatag may access the account of Customer, or any Authorized User, to support the Customer’s use of the Bananatag Service.
3.2 Enhancements: Provided Bananatag does not materially decrease the features or functionality of the Bananatag Service, at no additional cost to Customer, Bananatag may modify, update and enhance the Bananatag Service (“Updates”) in its discretion and such Updates will form a part of the Bananatag Service for the purposes of this Agreement.
4. CONFIDENTIAL INFORMATION
4.1 Confidential Information: Prior to or during the Term, one Party (“Discloser”) may disclose non-public information (“Confidential Information”) to the other Party (“Recipient”). Examples of Confidential Information include non-public information included in the Customer Materials, information included in security reports, questionnaires or other materials relating to privacy or security, and pricing. Information is still Confidential Information even if it is: (i) not marked confidential; (ii) disclosed before or after the effective date of this Agreement; or (iii) oral, visual, electronic, written or in any other format. If Customer provides personal information to Customer, Bananatag will treat it as Customer’s Confidential Information.
4.2 Restrictions on Use and Disclosure: The Recipient will only use the Confidential Information for the purposes of this Agreement. The Recipient will protect the Confidential Information from any unauthorized access, use or disclosure using the same degree of care that the Recipient uses to protect its own confidential information, but in no event less than a reasonable degree of care. The Recipient may share the Confidential Information with its employees, officers, directors, agents and professional advisors (“Representatives”), provided they: (i) need to know the Confidential Information; and (ii) are bound by confidentiality obligations comparable to those set out in this Agreement. The Recipient is responsible for any breach of this Agreement by its Representatives. The Recipient may disclose the Confidential Information if required by law, provided that the Recipient: (i) gives the Discloser as much notice as possible prior to the disclosure to the extent permitted by law; and (ii) reasonably cooperates with the Discloser to seek a protective order or otherwise prevent disclosure.
4.3 Deletion of Confidential Information: Recipient will delete all Confidential Information in its possession, custody, or control within 30 days’ of a request by Discloser during the Term or automatically on 30 days of termination or expiration of this Agreement, provided that Recipient may retain one copy of such Confidential Information for archival purposes or as required by applicable law. On request, Recipient will confirm, in writing, deletion of such Confidential Information and any copies thereof.
4.4 Non-Disclosure Agreement: To the extent that Customer has entered into a non-disclosure agreement with Bananatag in contemplation of this Agreement (“NDA”): (i) all Confidential Information disclosed under that NDA is deemed to have been disclosed under this Agreement; (ii) this Agreement is deemed to replace and supersede the NDA; and (iii) the NDA is hereby terminated.
4.5 Survival: This Section 4 will survive for three years following termination of the Agreement, except as it applies to trade secrets and personal information, in which case this Section 4 will survive in perpetuity.
5. SECURITY AND ACCEPTABLE USE
5.1 Security Measures: Bananatag will implement appropriate technical and organizational measures to protect Customer Materials (including personal information), taking into account the cost of implementation and the nature, context, scope and purposes of the processing. Bananatag is not responsible for the accuracy and quality of Customer’s data, ensuring the security and integrity of Customer’s computers, networks or systems (including with respect to protecting against viruses and malware), or, provided that Customer can download Customer’s data using the Bananatag Service during the Term, maintaining a backup of Customer’s data.
5.2 Acceptable Use: Customer will comply with, and cause all of its Authorized Users to comply with, the acceptable use policy currently located at: https://bananatag.com/acceptable-use/ (“Acceptable Use Policy”). Customer is responsible for all unauthorized activities, charges and liabilities made on or through its account. Bananatag may modify the Acceptable Use Policy, subject to the limits in Section 15.2.
5.3 Security Breach: Bananatag will notify Customer without undue delay on learning of an incident involving any loss of or unauthorized access to or disclosure of Customer’s Confidential Information (including personal information provided to Bananatag by Customer). On Customer’s request, Bananatag will provide reasonable assistance to Customer in meeting Customer’s obligations under applicable law with respect to such incident.
5.4 On Site Security: Where Bananatag personnel are required to attend at Customer’s facilities in order to provide the Bananatag Service, Bananatag will comply, and will cause its personnel to comply, with Customer’s reasonable written health, safety, respectful workplace and security policies provided by Customer to Bananatag in advance.
6. WARRANTIES, INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 Warranties: Bananatag represents and warrants that: (i) the Bananatag Service will perform in substantial conformance with the Documentation; and (ii) it will make reasonable efforts to keep the Bananatag Service free of viruses, Trojans and all other forms of malware. The sole and exclusive remedy of Customer and the sole liability of Bananatag for breach of the warranties in this Section 6.1 will be to repair any non-conforming aspects of the Bananatag Service or, if repair would not, in Bananatag’s opinion, be reasonably feasible, Bananatag may terminate Customer’s subscription and refund Customer the unused portions of all applicable Fees already paid by Customer.
6.2 Intellectual Property Warranty: Bananatag represents and warrants that the Bananatag Service and Documentation does not infringe or misappropriate any third party patents, copyright or trade secrets. The sole remedy of Customer and the sole liability of Bananatag for breach of the warranty in this Section 6.2 will be indemnification under Section 6.4.
6.3 Warranty Disclaimer: EXCEPT AS EXPRESSLY SET OUT IN SECTIONS 6.1 AND 6.2, BANANATAG DISCLAIMS ALL WARRANTIES REGARDING THE BANANATAG SERVICE AND THE DOCUMENTATION, EITHER STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, BANANATAG DOES NOT WARRANT THAT THE BANANATAG SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES NOT SET OUT IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
6.4 Bananatag Indemnification: Bananatag will defend Customer from any claim, demand, or proceeding (“Claim”) brought against Customer by a third party alleging that Customer’s use of the Bananatag Service or Documentation in accordance with this Agreement infringes or misappropriates such third party’s patent, copyright or trade secret (“IP Claim”) and pay any damages, liabilities, costs and expenses awarded by a court to the third party claiming infringement or set out in a settlement agreed to by Bananatag. Bananatag is not required to defend or indemnify Customer for IP Claims to the extent relating to: (i) Customer Materials; (ii) Customer’s breach of this Agreement, including use of the Bananatag Service in a manner inconsistent with the Documentation; (iii) Customer’s use of the Bananatag Service in combination with data, software, hardware, equipment, or technology not provided or authorized in writing by Bananatag; (iv) Customer’s use of any version of the Bananatag Service that is no longer supported by Bananatag, where Bananatag has notified Customer of such non-support; (v) Customer’s continued use of the Bananatag Service or other allegedly infringing activity after receiving notice of Claim for such alleged infringement; and (vi) any Updates to the Bananatag Service not made or authorized by Bananatag (each an “Excluded Matter”).If Bananatag suspects or learns of an actual or threatened IP Claim, Bananatag may, in its sole discretion, modify the Bananatag Service so that it is non-infringing or obtain the right for Customer to continue to use the Bananatag Service, provided the Bananatag Service still performs in substantial conformance with the Documentation. If Bananatag determines that neither action is reasonably feasible, Bananatag may terminate Customer’s subscription and refund Customer the unused portions of all applicable Fees already paid by Customer. The obligations set out in this Section 6.4 constitute Customer’s sole and exclusive remedy, and Bananatag’s entire liability, with respect to all IP Claims.
6.5 Customer Indemnification: Customer will defend and indemnify Bananatag from and against any Claim brought by a third party against Bananatag alleging: (i) infringement or misappropriation of such third party’s Intellectual Property Rights to the extent such Claim results from an Excluded Matter or any content provided or uploaded by Customer; or (ii) Customer’s breach of applicable law.
6.6 Conditions of Indemnification: Each Party’s indemnity obligations set out in Section 6.4 and Section 6.5 are conditional on the Party seeking indemnification: (i) promptly notifying the indemnifying Party of the Claim in writing, although failure to promptly notify will only relieve the indemnifying Party of its indemnification obligation to the extent that it prejudices the indemnifying Party’s defense of the Claim; (ii) granting the indemnifying Party sole control of the defense and settlement of the Claim, although the indemnified Party may participate in the defense with counsel of its choice at its own expense and the indemnifying Party may not agree to any settlement that imposes any fault or obligation on the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld or delayed); and (iii) providing reasonable cooperation and assistance in the defense and negotiation of the Claim.
6.7 Limitations of Liability: IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS (THE “AFFILIATED ENTITIES”) BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR ANY: (I) LOSS OF USE, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES; (II) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; OR (III) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATED ENTITIESBE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR AN AMOUNT EXCEEDING: (I) SUBJECT TO THE FOLLOWING SECTION, THE FEES PAID OR PAYABLE BY CUSTOMER TO BANANATAG FOR THE BANANATAG SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY (THE “GENERAL CAP”); AND (II) AS IT APPLIES TO A PARTY’S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF APPLICABLE LAW OR BREACH OF SECTION 4, 5 OR 10, TWO TIMES THE GENERAL CAP.THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION APPLY NOTWITHSTANDING: (I) THE APPLICABLE LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, (II) WHETHER THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES; AND (III) ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY.
7. TERM AND TERMINATION
7.1 Term: The term of this Agreement will commence on Customer’s trial or subscription activation date (as applicable) and will continue for the duration indicated on the Order Form (the “Term”), unless otherwise terminated in accordance with this Agreement. Except in the case of a trial period, the Term will automatically renew for successive periods of the same duration as the original Term at Customer’s Subscription Fee (as defined and set out in the Order Form) or any increased rate provided that Bananatag has given Customer notice of such increase no less than 60 days prior to the renewal date. The following do not constitute Subscription Fee increases: (i) additional fees for upgrades or additional services that Customer orders; and (ii) expiration of any discount or incentive programs. If a Party notifies the other Party that it does not want to renew this Agreement at least 30 days before the end of the then-current Term, this Agreement will expire at the end of that Term.
7.2 Termination: Customer may terminate this Agreement on 30 days’ written notice to Bananatag at any time with no refund of any prepaid Fees. If either Party materially breaches this Agreement, the non-breaching Party may terminate this Agreement if the breaching Party does not cure such breach (if curable) within 30 days of receiving written notice of the breach. To the extent Customer is using the Bananatag Service on a trial basis or to beta test new features or functionalities of the Bananatag Service, Customer or Bananatag may terminate the trial or beta test features at any time.
7.3 Effect of Termination: If this Agreement is terminated due to Bananatag’s breach, Bananatag will refund the unused portions of all applicable Fees paid by Customer. On termination or expiration of this Agreement, Customer’s right to access and use the Bananatag Service will terminate. If the Bananatag Service does not include a feature that enables Customer to export Customer Materials in Customer’s account prior to the end of the Term, Bananatag will assist Customer to export Customer Materials in Customer’s account, provided Customer makes such request before the end of the Term.
7.4 Surviving Sections: The rights and obligation of the Parties under Sections 2, 4, 6.7, 7.3, 8, 9, 10, 13 and 15, Sections 6.1 – 6.6 insofar as they relate to events that occurred prior to expiration or termination, and all other Sections that by their terms contemplate obligations intended to survive, will survive expiration or termination of this Agreement.
8. EXPORT LAWS:
Customer will not use the Bananatag Service or Documentation in any manner prohibited by applicable import or export laws, restrictions or regulations. The Bananatag Service and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as defined in Section 12.212 of the United States Federal Acquisition Regulations. Any use, duplication or disclosure of the Bananatag Service or the Documentation by or on behalf of the U.S. Government is subject to the restrictions set out in this Agreement.
9. TAXES:
All fees, expenses, and other amounts payable to Bananatag hereunder do not include any sales, use, value added, excise, or other applicable taxes, tariffs or duties (“Taxes”), payment of which will be Customer’s sole responsibility (excluding any Taxes based on Bananatag’s net income). Customer will promptly reimburse Bananatag for any Taxes that Bananatag pays on Customer’s behalf, unless Customer provides satisfactory documentation that such Taxes are not applicable to Customer.
10. COMPLIANCE WITH LAWS
10.1 Compliance with Laws: Each Party will comply with the laws and regulations that apply to it in connection with this Agreement (which does not require a Party to comply with laws that apply to the other Party). It is Customer’s responsibility to determine whether the Bananatag Service meets Customer’s obligations under any applicable law, including the data privacy laws of the European Union and its member states, which include the European Union’s General Data Protection Regulation (collectively, “EU Data Privacy Law”). Bananatag will not be liable if the Bananatag Service does not meet Customer’s requirements under applicable law.
10.2 EU Data Privacy Laws: If Customer is located in the European Economic Area, United Kingdom or Switzerland (collectively, the “EEA”) or requires Bananatag to process data subject to EU Data Privacy Law, the Parties agree to be bound by Bananatag’s EU Data Processing Agreement located at: https://bananatag.com/dpa (the “Data Processing Agreement”).
10.3 California Privacy Laws: To the extent any personal information provided by Customer is subject to the California Consumer Privacy Act of 2018 (“CCPA”): (a) Bananatag is the service provider and Customer, or its applicable Affiliate, is the business; (b) Bananatag will not sell such personal information (as “sell” is defined in the CCPA); (c) Bananatag will not retain, use or disclose such personal information except to provide the Bananatag Service or as otherwise set out in this Agreement; (d) Bananatag will not retain, use or disclose such personal information outside of the direct business relationship between Bananatag and Customer; and (e) Bananatag certifies that it understands and will comply with the foregoing restrictions. Nothing in the foregoing restricts Bananatag from collecting, using or disclosing personal information where permitted or required by laws applicable to Bananatag.
11. NOTICES:
All notices under this Agreement, to be effective, must be in writing and delivered to the other Party either: (i) by hand; (ii) by overnight receipted courier service or prepaid registered mail; or (iii) by email, to the address identified for legal notice on the Order Form. Any notice delivered by hand is deemed to be received on the date of actual delivery or if by mail, 96 hours after mailing. Any notice sent by email is deemed to be received on the day of sending.
12. RIGHTS AND REMEDIES:
Except as expressly provided in this Agreement, the rights and remedies of each Party are not exclusive and are in addition to any other rights and remedies provided by law or at equity. Notwithstanding anything to the contrary in this Agreement, the Parties agree that a breach by either Party of its obligations under Section 2 or Section 4 may cause immediate and irreparable harm to the other Party and will entitle that Party to seek injunctive relief in addition to all other remedies.
13. USE OF NAME AND LOGO:
Customer consents to Bananatag using its name and logo in marketing materials. Bananatag will not modify or change Customer’s name or logo or use it in any way Customer considers disparaging or negative. Customer may revoke this consent at any time.
14. FORCE MAJEURE:
Neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including labor disputes, strikes, wars, riots, terrorism, criminal acts of third parties, acts of God or governmental action, provided that such Party uses commercially reasonable efforts to resume performance as soon as reasonably practicable.
15. GENERAL
15.1 Entire Agreement: This Agreement, together with the Service Level Agreement, Order Form, Acceptable Use Policy and Data Processing Agreement (if applicable), constitutes the entire agreement of the Parties related to the subject matter of this Agreement and supersedes all prior or contemporaneous understandings, agreements, and representations and warranties, both written and oral, related to the subject matter of this Agreement. For clarity, terms and conditions inserted by Customer in the Order Form, included in Customer’s purchase order, or contained on any ‘shrinkwrap’ agreement, terms of use or other form will be of no force and effect, even if ‘accepted,’ acknowledged or ‘clicked-through’ by the other Party.
15.2 Amendment: No modification or amendment of this Agreement is effective unless it is in writing and signed by both Parties. Notwithstanding the foregoing, Bananatag may, in its sole discretion, make changes to the Service Level Agreement and Acceptable Use Policy, provided such changes do not reduce the service level or availability of the Bananatag Service in effect during the then-current Term. Bananatag will inform Customer of any material changes by sending an update to Customer by email to the address identified for legal notice provided on the Order Form. Customer’s continued use of the Bananatag Service after changes have been made will constitute Customer’s acceptance of the changes. If Customer does not wish to continue using the Bananatag Service under the new version of the Service Level Agreement or Acceptable Use Policy, then Customer should contact accounts@bananatag.com.
15.3 Further Assurances: Each Party will, on the reasonable request of the other Party, execute such documents and perform such acts as may be necessary to give full effect to this Agreement.
15.4 Mitigation: Nothing in this Agreement will restrict or limit either Party’s obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give right to a Claim under Sections 2, 4, and 6.1 – 6.6.
15.5 Enurement and Assignment: Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign its rights and obligations to an acquirer of all or substantially all of its business assets in connection with merger, corporate reorganization, or like corporate transaction. This Agreement is binding on and will enure to the benefit of the Parties and their respective permitted successors and assigns.
15.6 Waiver and Severability: A waiver of any term of this Agreement is effective only if it is in writing and signed by both Parties and is not a waiver of any other term. If any term of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect, invalidate or render unenforceable: (i) any other term of this Agreement; or (ii) the same term in any other jurisdiction.
15.7 Precedence: Any inconsistency or ambiguity in the provisions of this Agreement will be resolved by reference to the following, in order of precedence: (i) the Data Processing Agreement (if applicable); (ii) the main body of this Agreement; (iii) the Order Form (except where Bananatag includes, and Customer accepts, terms in an Order Form that explicitly take precedence over the Data Processing Agreement or the main body of this Agreement); (iv) the Acceptable Use Policy; and (v) the Service Level Agreement.
15.8 Choice of Law and Forum: This Agreement is governed by and is to be construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law rule in any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods. The Parties submit themselves to the exclusive jurisdiction of the federal or provincial courts located in Vancouver, British Columbia, Canada (except that Bananatag may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Bananatag Intellectual Property in any court of competent jurisdiction). EACH PARTY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
15.9 Insurance: Each Party agrees to maintain, during the term of this Agreement, at its own cost and expense, insurance coverage in amounts consistent with industry standards and necessary and reasonable to insure itself and its employees against any claims of any nature, which may arise from performance of its duties and responsibilities under this Agreement, including general commercial and cyber liability insurance.
15.10 Relationship: Nothing in this Agreement will be deemed to constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
15.11 Interpretation: In this Agreement: (i) the words “include”, “includes” and “including” are not limiting; (ii) the word “or” is not exclusive; (iii) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (iv) headings and captions are not considered part of the Agreement but are for convenience only.
