This CUSTOMER AGREEMENT (“Agreement”) governs the purchase of services between Appearition Pty Ltd, on behalf of itself and its suppliers and licensors, or the entity identified on your order confirmation, invoice or other form of purchase document entered into by you at the time you purchased the Services, which shall include all its affiliates and legal assigns (“Appearition”) and you (“you” or “Customer”), which shall include all your affiliates and legal assigns.
Unless a separate agreement has been signed between Customer and Appearition, the following terms and any other Appearition Site specified terms will govern all purchases made by Customer hereunder. By placing an order or clicking the “I Accept” option located on or adjacent to Customer’s screen where these terms may be displayed, Customer agrees to the terms below. If Customer is accepting these terms on behalf of another entity or company or other legal entity, Customer represents and warrants that Customer has full authority to bind that person, company or legal entity to these terms. Appearition may, from time to time and at its sole option, revise this Agreement without notice by posting the revised agreement on its website. The Agreement posted on Appearition’s website at the time Appearition accepts Customer’s order governs that purchase.
- “Services” means any and all unique, technical, and/or infrequent services performed by Appearition, its affiliates or its licensors qualified by education, experience, and/or technical ability to provide such services as described herein.
- “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Appearition to you in the course of performing the Services. Software includes software locally installed on your systems and software accessed by you through the internet or other remote means (such as websites, portals and “cloud-based” solutions).
- “Deliverables” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Appearition or its suppliers, licensors or subcontractors in the course of performing the Services.
- “Materials” means all content and other items included with or as part of the Services, Software or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds and software.
- “Third-Party Products” means any non-Appearition-branded products, software or services.
- “Purchase” includes also a situation where no money is charged, but the terms and conditions as set out within this CUSTOMER AGREEMENT are consented to and a service delivered (such as the download of an App or other product).
2 Scope of Agreement
- This Agreement, together with your Purchase Order, forms a legally binding contract between you and Appearition in relation to your purchase and Appearition’s performance of Services. Purchase of Services under this Agreement shall be for the Customer’s own internal use and not for resale purposes.
- The Services, Software and/or Deliverables to be provided by Appearition shall be set out in the Purchase Order, which shall be part of your order or invoice on purchase of such Services, and shall include a description of Services and other such relevant documents. Each Purchase Order will be interpreted as a single agreement, independent of any other Purchase Order, so that all of the provisions are given as full effect as possible.
In the event of any conflict between this Agreement and any Purchase Order, the Purchase Order and the terms contained therein shall prevail.
3 Customer Information
- Appearition may require you to open an account on its site in connection with the performance of Services. You must complete the registration process by providing Appearition with current, complete and accurate information as prompted by the applicable registration form. You also will choose a password and a user name. You are responsible for keeping your account information and password confidential and are responsible for all activity that occurs under your account. You agree to notify Appearition without delay of any unauthorized use of your account or any other breach of security.
- You further agree to provide current, complete, and accurate purchase and account information for all purchases made at the Appearition site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that Appearition can complete your transactions and contact you as needed in connection with your transactions.
- Only specific individuals designated by Customer may use and access the Services purchased by Customer under this Agreement (“Authorised Users”). Authorised Users shall also be required to choose separate user names and passwords in order to use and access the Services. The number of Authorised Users for each Service purchased by Customer shall be set out in the Purchase Order. Customer may choose to increase the number of Authorised Users. In such cases, additional fees may be applicable which shall be paid by Customer in accordance with Clause 4 herein. Customer is responsible for the compliance of this Agreement and related Purchase Orders by all its Authorised Users and shall indemnify and hold harmless Appearition for any Loss as a result of breach of this Agreement or any Purchase Orders by any Authorised User.
4 Terms of Payment
- Your order is subject to acceptance or cancellation by Appearition, in Appearition’s sole discretion. Terms of payment are within Appearition’s sole discretion, and unless otherwise agreed to by Appearition, payment must be received by Appearition prior to Appearition’s acceptance of an order. Each accepted order will be interpreted as a single Agreement, independent of any other orders. Payment for Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer, third-party online payment portal or some other prearranged payment method unless credit terms have been agreed to by Appearition. Payment to Appearition in respect of Services shall be made to the account indicated by Appearition (as may be amended from time to time). Customer shall make all subscription payments in full and such purchase is non-cancellable over the term of the Purchase Order.
- Customer shall make payments in the currency identified by Appearition in its invoice. Additional charges will apply if Customer requests Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing and statements.
- Invoices issued by Appearition in respect of any credit terms agreed to between Appearition and Customer, extension of Services or for renewal of Purchase Orders etc., are due and payable within the time period noted on your invoice, or if not noted, then within fourteen (14) days, measured from the date of the invoice. Any amount remaining unpaid after fourteen (14) days shall accrue interest at a rate equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate allowed by law.
- Invoices submitted by Appearition to Customer are deemed accepted and approved unless disputed by Customer within ten (10) business days of Customer’s receipt of the invoice. In the event Customer disputes a portion of an invoice, Customer agrees to fully pay the undisputed portion and Appearition’ acceptance of such partial payment shall not waive any of its rights to the remaining balances nor in any way constitute accord and satisfaction.
- Appearition is not responsible for pricing, typographical or other errors in any offer, and reserves the right to cancel orders arising from such errors.
- The prices charged for Services purchased under this Agreement shall be the amounts set forth on Appearition’s website or other quotation or as provided by the applicable invoice or Purchase Order relating to such Services. Quoted prices will remain in effect only until the expiration date of the quote or Appearition’s acceptance of your order. Taxes are not included in the prices of Services unless expressly indicated at the time of sale.
- Appearition’s policy is one of ongoing update and revision. Appearition may revise or discontinue Services offerings at any time without prior notice to Customer. A change in a Service may occur after a Customer places an order but before Appearition performs the Service. As a result, Services Customer receives might display minor differences from the Services Customer orders.
5 Term & Termination
- Services are provided on a subscription basis for a set term specified in your Purchase Order (“Subscription Term”). Except as otherwise specified in your Purchase Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account at the Appearition website. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
- Subject to the terms and conditions of this Agreement, this Agreement may be terminated:
- By either Party for a material breach thereof upon giving the other party thirty (30) days prior written notice identifying specifically the alleged breach, provided that the breaching party does not cure such breach to the reasonable satisfaction of both parties within the thirty (30) day notice period. During this notice period the non-breaching party shall have the right to suspend its performance under this Agreement; or
- If either Party is declared insolvent or bankrupt or is unable to pay its debts, or enters into a compromise or any arrangement with its creditors, or in the event that a trustee or receiver is appointed to take over all or a substantial part of the assets of that Party.
Notwithstanding Clause 5.2 above, Appearition may immediately terminate a Purchase Order or this Agreement, without prior notice, if you fail to make payment for Services when due. In the event Appearition terminates any Purchase Order, this Agreement will continue to remain in force for all other valid Purchase Order until such time this Agreement expires or is otherwise terminated as set out herein
6 Intellectual Property
- All right, title and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets and trade dress) embodied in the Services, Software, Deliverables and Materials, including the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Appearition, its affiliates or its licensors. Except for the limited rights granted under this Agreement, neither Appearition nor any of its affiliates nor its licensors grant Customer any express or implied rights or licenses to any of Appearition’ or its affiliates or its licensor’s intellectual property.
- With respect to Software provided by Appearition in connection with the Services, Appearition hereby grants Customer a personal, non-exclusive, non-transferable license to access and use such Software only during the term of the relevant Purchase Order and solely as necessary for Customer to enjoy the benefit of the Software or related Services as stated in the applicable Purchase Order. Customer at no time will attempt to or assist others to license, sell, assign, sublicense or otherwise transfer or encumber the Software or reverse compile, deconstruct, disassemble or otherwise attempt to extract the code of such Software or create or attempt to create any copy or facsimile of the Software, or publish, distribute or otherwise make available to third parties any Software documentation or any part thereof.
- Both Parties hereto agree not to display or use any trademarks, logo or other copyrighted material (“Marks”) owned by either Party or permit the same to be displayed or used by any third parties, unless specifically authorized by the other Party in writing. The Parties also agree that they shall not use any part of any of the Marks or any part thereof as part of their own name or in any other manner not previously approved in writing by the other Party.
7 Fair Use of Materials
Appearition may provide Materials to Customer from time to time, as required in relation to the Services performed by Appearition under this Agreement. All rights, title and interest in such Materials and any intellectual property therein shall belong to Appearition, its affiliates or its licensors. Appearition grants Customer permission for limited use of such Materials in the manner set out in the Purchase Order. In the event Customer exceeds the agreed limit for use of the Materials, Appearition shall charge the Customer additional fees for such use which shall further be detailed in the Purchase Order.
8 Suspension or modification of Services
- Appearition may suspend, terminate, withdraw or discontinue all or part of the Services upon receipt of a summons or law-enforcement request, or when Appearition believes, in its sole discretion that Customer has breached any term of this Agreement or an applicable Purchase Order or are involved in any fraudulent, misleading or illegal activities.
- Customer agrees that the operation and availability of the systems used for performing the Services, including telephone, computer networks, and the internet, or to transmit information, can be unpredictable and may, from time to time, interfere with or prevent performance of the Services by Appearition. Appearition shall not be liable for any such interference with or prevention of performance of such Services or use of any Software provided in connection with such Services.
9 Support Services
Appearition shall provide support and maintenance services for its Services and/or Software, if Customer chooses to purchase such Support Services, for the period agreed to between the Parties in the relevant Purchase Order. Support and maintenance is subject to the terms of the Appearition support policy, and as set out in the Purchase Order. The Appearition support policy may be modified by Appearition from time to time to reflect process improvements or changing practises.
10 Software Maintenance
With respect to Software licensed under this Agreement, it may be necessary for Appearition, its suppliers or licensors to perform scheduled or unscheduled repairs or maintenance or remotely patch or upgrade the software, which may temporarily degrade the quality of the Services or result in partial or complete outage of the Software. Appearition provides no assurance that Customer will receive advance notification of such activities or that the Software will be uninterrupted or error-free. Unless otherwise agreed to in writing between Customer and Appearition, any degradation or interruption in the Software, including third party image recognition software used by Appearition in the performance of Services, shall not give rise to a refund or credit of any fees paid by Customer under this Agreement or any Purchase Order.
11 Beta Services
- Appearition may offer Customers certain pre-release beta products or services (“Beta Services”) free of cost, through free accounts or limited trial use. Appearition grants Customers a limited, non-exclusive, non-transferable, royalty-free, revocable license for such Beta Services solely for internal evaluation purposes and in the manner set out by Appearition in its beta use policy. Customer agrees that still the Beta Services are still under development, and may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Services.
- On conclusion on the trial period, the Customer will not have any further right to use the Beta Services, and if Appearition releases a generally available version of such Beta Services, the Customer’s use of the generally commercially available version will be subject to separate terms and conditions. However, Appearition does not guarantee that the Beta Services will ever be made generally commercially available, or that any generally commercially available version will contain the same or similar functionality as the version made available by Appearition during the trial period.
- To the maximum extent permitted by applicable law, Appearition disclaims all obligations or liabilities with respect to Beta Services, including any warranty and indemnity obligations.
12 Customer Data
- In Appearition’s performance of the Services or in connection with Customer’s use of the Service-related Software, it may be necessary for Appearition to obtain, receive or collect data or information, including system-specific data, information related to the Customer’s business practises, marketing strategies, related files, images, audio & video material, as well as end-user information (collectively, the “Data”). In such cases, Customer grants Appearition a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce or create derivative works of the Data solely for those purposes.
- In addition, Customer grants Appearition a license to aggregate and use the Data in an anonymous manner in support of Appearition’s internal research & analysis, marketing and sales activities. Customer also grants Appearition the right to copy and maintain such material and content on Appearition’s servers (or the servers of its suppliers) during the term of this Agreement.
- Appearition shall implement reasonable security measures to protect the Data from security attacks. However, Customer agrees that use of Appearition’s Software and performance of Services by Appearition involves transmission of Data over networks that are not owned, operated or controlled by Appearition. Appearition cannot guarantee that its security procedures will be error-free, that transmissions of the Data will always be secure or that unauthorized third parties will never be able to defeat Appearition’s security measures or those of its third party service providers.
- Customer agrees that any Data uploaded on or through Appearition’s Software or through use of its Services is in compliance with Appearition’s acceptable use policy. Customer represents and warrants that Customer has obtained all rights, permissions and consents necessary to use and transfer the Data, including without limitation rights relating to any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies, both within and outside of the country in which Customer is located in conjunction with Appearition’s performance of the Services or Customer’s use of the Service-related Software (including providing adequate disclosures and obtaining legally sufficient consent from Customer’s employees, agents, contractors and customers).
- Appearition reserves the right to remove any Data uploaded by the Customer and/or suspend Services if such Data is in violation of Clause 12.4 above or Appearition’s acceptable use policy.
13 Acceptable Use
- Customer must use good judgement regarding appropriate use of Appearition’s Services, Software and Materials, where applicable, in accordance with Appearition’s policies, standards and guidelines.
- Customer shall not and ensure that its users shall not:
- Use Appearition’s Software for any unlawful or prohibited purpose;
- Cause a security breach to either Appearition’s Software or other network resources, including, but not limited to, accessing data, servers, or accounts without authoritisation or circumventing authorisation;
- Cause a disruption of service to either Appearition’s Software or other network resources, including, but not limited to, ICMP floods, packet spoofing, denial of service, heap or buffer overflows, and forged routing information for malicious purposes;
- Introduce honeypots, honeynets, or similar technology on Appearition’s Software or network;
- Intentionally introduce malicious code, including, but not limited to, viruses, worms, Trojan horses, e-mail bombs, spyware, adware, and keyloggers;
- Customer shall further ensure that Customer shall not and its users shall not:
- Violate copyright law, including, but not limited to, illegally duplicating or transmitting copyrighted pictures, music, video, and software through use of Appearition’s Software;
- Upload illegal, offensive, abusive, threatening, fraudulent, libelous and/or defamatory pictures, music, video, text or other content on or through Appearition’s Software;
- Use Appearition’s Software to violate the privacy of others, including publishing or posting other people’s private and confidential information without their express permission, or collecting or gathering other people’s personal information (including account names or information) from Appearition’s Software;
- Use Appearition’s Software to generate or send unsolicited communications, advertising, chain letters, or spam.
- Appearition reserves the right to suspend or terminate a Service or terminate this Agreement effective upon notice for a violation of Clause 13 herein. Customer agrees to indemnify and hold harmless Appearition from any losses, damages, costs or expenses resulting from any third party claim or allegation (“Claim”) arising out of or relating to Appearition’s acceptable use policy.
14 Warranties and Liability
- Appearition represents and warrants that Services performed by Appearition will:
- be performed in a timely, competent, professional and workmanlike manner;
- substantially conform to the written specifications under the Purchase Order;
- be in compliance with all laws, rules and regulations applicable to Appearition’s performance of the Services under the Purchase Order.
- Except as expressly stated in the preceding sentences of this paragraph, Appearition, (including its affiliates, contractors, and agents, and each of their respective employees, directors, and officers), on behalf of itself and its licensors & suppliers (collectively, the “Appearition parties”) makes no express or implied warranty with respect to any of the software or services, including but not limited to any warranty (1) of merchantability, fitness for a particular purpose, performance, suitability or non-infringement; (2) relating to third-party products, software or services; (3) relating to the performance of any hardware or software or Appearition’s performance of the services; or (4) regarding the results to be obtained from the software, services or the results of any recommendation by Appearition. Warranties do not cover damage due to external causes, such as accident, abuse, misuse, problems with electrical power, or service not performed or authorized by Appearition. These warranties do not apply to any third-party products.
- With respect to Customer’s use of the software (1) neither Appearition nor any of the Appearition parties makes any express or implied warranty that software provided to Customer in connection with this agreement is or will be secure, accurate, complete, uninterrupted, without error, or free of viruses, worms, other harmful components, or other program limitations; or that any errors in the software will be corrected; (2) Customer assumes the entire cost of all necessary servicing, repair or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of Appearition’s gross negligence or willful misconduct; (3) Appearition and the Appearition parties, jointly and severally, disclaim and make no warranties or representations as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness or effectiveness of any reports, data, results or other information obtained or generated by Customer related to Customer’s use of the software; and (4) use of the software is entirely at Customer’s own risk and neither Appearition nor the Appearition parties shall have any liability relating to such use.
- Appearition shall defend and indemnify Customer against any third-party claim or action that Software, Services or Deliverables (excluding Third-Party Products and open source software) prepared or produced by Appearition and delivered pursuant to this Agreement infringe or misappropriate that third party’s intellectual property rights (“Indemnified Claims“).
Notwithstanding the foregoing, Appearition shall have no obligation under this Clause for any claim resulting or arising from
- modifications of the Software, Services or Deliverables that were not performed or developed by or on behalf of Appearition;
- the combination, operation, or use of the Software, Services or Deliverables in connection with a third-party product, software or service (the combination of which causes the claimed infringement); or
- Appearition’s compliance with Customer’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Customer.
Appearition’s duty to indemnify and defend under this Clause is contingent upon:
- Appearition receiving prompt written notice of the third-party claim or action for which Appearition must indemnify Customer,
- Appearition having the right to solely control the defence and resolution of such claim or action, and
- Customer’s cooperation with Appearition in defending and resolving such claim or action.
This Clause 15 states Customer’s exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Appearition to provide any greater indemnity to Customer.
- Customer agrees to, at all times, defend, indemnify and hold Appearition, its affiliates, subsidiaries, franchisees and the officers, directors, agents and employees of each, harmless from and against any and all claims, suits, damages, losses, liabilities, obligations, fines, penalties, costs and expenses (whether based on libel, slander, invasion of privacy, breach of contract, product liability, patent, trademark, license or copyright infringement or otherwise), including legal fees and expenses, of whatever kind or nature (collectively, “Loss”), arising out of or based on Customer’s breach or violation of this Agreement or Customer’s failure to perform any of its agreements, terms, covenants, conditions, representations or warranties of this Agreement.
- Limitation of Liability
- the maximum liability of Appearition, its subsidiaries, suppliers and licensors, and its respective directors and officers, to Customer for damages for any and all causes whatsoever, and Customer’s maximum remedy, regardless of the form of action, whether in contract, tort, warranty, strict liability, negligence or otherwise, shall be limited to an amount equal to the total fees paid by Customer to Appearition hereunder for the portion of the services giving rise to any claim. in no event shall Appearition, its subsidiaries, suppliers and licensors, its directors and officers be liable for any lost data or content, lost profits, business interruption or for any ancillary, indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the services provided under this agreement, even if Appearition has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
- Further, Appearition shall not be liable for the following: (1) loss of revenue, income, profit or savings; (2) lost or corrupted data or software, loss of use of a system or network or the recovery of such; (3) loss of business opportunity; (4) business interruption or downtime; or (5) third-party products not being available for use.
17 Confidentiality And Non-Disclosure
- The Parties hereby agree that they shall maintain utmost confidentiality on any information concerning the other’s price quotes, preliminary concepts, marketing proposals, branding strategies, creative designs and concepts, technical data, web designs, trade secrets and know-how, research, product plans, products, customer technical requirements, software, programming techniques, algorithms, services, suppliers, supplier lists, customers, employee lists, customer lists, markets, developments, inventions, processes, technology, designs, drawings, engineering, apparatus, techniques, hardware configuration information, marketing, forecasts, business strategy, finances or other business information, including all Customer Data except as set out in Clause 7 herein, disclosed by the other party and identified in writing as confidential (“Confidential Information”).
- A Party’s obligation of confidentiality does not apply to the extent that information is already known to the receiving Party prior to the commencement of the negotiations leading to this Agreement; or in, or comes to, the knowledge of the recipient Party other than as a result of its being disclosed to it by the other Party pursuant to this Agreement; or public knowledge (other than as a result of a breach of this Agreement); or required to be disclosed by law or any competent regulatory authority, stock exchange or similar; in such a case the Party required to make the disclosure shall notify the other Party and the first Party shall take such action in respect of the disclosure (at the expense of the other Party) as the other Party may reasonably request; or developed independently by the recipient Party without benefit of the Confidential Information; or rightfully received form a third party without similar restriction and without breach of any obligation of confidentiality; or approved for release by written authorization of the furnishing Party.
- Each Party will use the same standard of care it uses for its own confidential and trade secret information, but no less than reasonable care, not to disclose the Confidential Information to any other person, firm, company or organization other than those having a need to know such information for the purposes of meeting that Party’s obligations under this Agreement; use all commercially reasonable efforts to prevent persons from having access to such Confidential Information; not copy or reproduce or cause to be copied or reproduced by any means whatsoever the whole or any part of the Confidential Information for any unauthorized purpose; and promptly return to the other upon the other’s request or destroy (and certify that such destruction has taken place) all such Confidential Information of the other and any copies, whether authorized or not.
- In the case of accidental or inadvertent disclosure by a Party, that party shall take all commercially reasonable steps to prevent misuse or further disclosure.
18 Governing Law & Dispute Resolution
- This Agreement shall be governed by the laws of Australia, without regard to any conflict of laws. Subject to Clause 18.3 herein below, all matters arising out of this Agreement will be subject to the exclusive jurisdiction of courts in Melbourne, Australia.
- In the event of any dispute, claim or controversy, Appearition and Customer shall attempt in good faith to resolve through negotiation such dispute, claim or controversy arising out of or relating to this Agreement. Either Party may initiate negotiations by providing written notice in letter form to the other Party, setting forth the subject of the dispute and the relief requested.
- If the Parties are unable to resolve the dispute, claim or controversy arising out of or relating to this Agreement pursuant to the above subparagraph, such dispute, claim or controversy shall be submitted to non-final and non-binding arbitration. Either Party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration to the other Party. The arbitration will be conducted in accordance with the Australian Centre for International Commercial Arbitration Rules, 2016 and any amendments thereof, which Rules are deemed to be incorporated by reference into this clause, in effect at the time of filing of the demand for arbitration. The number of arbitrators shall be 1 (one), chosen by mutual agreement of both Parties. The seat of arbitration shall be Melbourne and the language of arbitration shall be English. The Parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs. The provisions of this Paragraph may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered.
- Notwithstanding the provisions of Clauses 18.2 & 18.3 above, a Party seeking preliminary or temporary injunctive relief may, in connection therewith, proceed before a court of competent jurisdiction for such purpose without regard to the provisions of Clauses 18.2 & 18.3 above.
- Appearition shall not be liable for any claim brought more than one (1) year after the cause of action for such claim arose.
- Force Majeure. Neither Party shall be considered in default of this Agreement or be liable for damages, for any failure of performance hereunder occasioned by an act of God, force of nature, war or warlike activity, insurrection or civil commotion, labour dispute, transportation delay, governmental regulatory action whether or not with proper authority or other cause similar or dissimilar to the foregoing and beyond its reasonable control, provided the Party so affected gives prompt notice to the other. In the event of a suspension of any obligation by reason of this section which extends beyond ten (10) days, the Party not affected may, at its option, elect to cancel those aspects of this Agreement which are reasonably feasible to terminate, provided however, that this Paragraph shall not be a basis to terminate the overall Agreement unless such suspension or non-performance is to the extent that such suspension or non-performance renders this Agreement impracticable for the Party not affected. Such cancellation shall be effective thirty (30) days after written notice of such cancellation has been given to the other Party.
- Notice to either Party under this Agreement or any related Purchase Order must be in writing and sent by postage prepaid registered mail or receipted courier service to the respective address set out in the title clause of this Agreement or to such other address (including facsimile or e-mail) as specified in writing, and will be effective upon receipt.
- Entire Agreement. This Agreement is the entire agreement between Customer and Appearition with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between Customer and Appearition.
- If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
- Relationship of Parties. Customer and Appearition are independent contractors, and nothing in this Agreement shall be deemed or construed to create, or have been intended to create a partnership, joint venture, employment or agency relationship between the parties. Each Party agrees that it neither has nor will give the appearance or impression of possessing the legal authority to bind or to commit any other Party in any way except as provided in this Agreement.
- Effect of Headings. The headings and subheadings of the sections of this Agreement are inserted for convenience of reference only and shall not control or affect the meaning or construction or any of the agreements, terms, covenants and conditions of this Agreement in any manner.
- No provision of this Agreement may be modified, waived or amended except by a written instrument duly executed by each of the Parties. Any such modifications, waivers or amendments shall not require additional consideration to be effective.
- Implied Waiver. Any failure on the part of either Party to insist upon the performance of this Agreement or any part of this Agreement shall not constitute a waiver of any right under this Agreement.
- Appearition has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that Appearition shall remain responsible for the performance of Services under this Agreement. Otherwise, neither Party may assign this Agreement without the permission of the other.
- All representations, warranties and indemnities made herein shall survive the termination of this Agreement and shall remain in full force and effect. All of a Party’s rights and privileges, to the extent they are fairly attributable to events or conditions occurring or existing on or prior to the termination of this Agreement, shall survive termination and shall be enforceable by such Party and its successors and assigns.