Standard Terms and Conditions – USA
This master agreement is for the provision of a software as a service (Agreement) and incorporates these standard terms and conditions (Terms), together with any applicable Order Form and any Special Terms (as set out in any Order Form) between Snowplow and the Customer.
1.1 As used in the Agreement, the following terms shall have the following meanings:
Affiliate means in respect of either the Customer or Snowplow any of its holding companies and any such subsidiary of that holding company, and in respect of the Customer, may also include any brand, sub-division or separately operated or owned website of the Customer;
Applicable Law means the internal laws of the State of New York and any other international laws which are applicable generally to products similar to the Product, and excludes any laws which affect the Customer but not Snowplow;
Charges means the initial and recurring charges specified on the Order Form and any other fees, charges, expenses or monies that may become due under this Agreement;
Cloud Computing Platform means any or all of Amazon Web Services, Google Cloud Platform and Microsoft Azure, as the case may be depending on the Product(s) ordered;
means any information disclosed by the Disclosing Party (or its Affiliate) to the Receiving Party, or which is received by or comes into the possession or knowledge of the Receiving Party under or in connection with this Agreement and which relates to the Disclosing Party (or its Affiliate), which is marked confidential, which the Receiving Party knows or reasonably ought to know is confidential, or which by its nature is confidential, including
(i) all Customer Data, which is the Confidential Information of the Customer; and
(ii) the Products and their associated documentation and know-how, which are the Confidential Information of Snowplow,
but excluding any information that:
(i) is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party or its agents, officers or employees in breach of:
(1) this Agreement; or
(2) any other undertaking of confidentiality which is addressed to the Disclosing Party and which the Receiving Party is aware of or reasonably ought to be aware of, and provided that any compilation of otherwise public information in a form not publicly known will nevertheless be treated as Confidential Information;
(ii) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party;
(iii) the parties agree in writing is not confidential or may be disclosed; or
(iv) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party;
Customer means the natural or legal person identified as such on the Order Form;
Customer Data means any data whether Personal Data, behavioral data, event data and/or any other type of information which the Customer uploads to, stores on or processes using (or causes to be uploaded to, stored on or processed using) the Products;
Customer Dependencies means:
(i) in respect of each Product, any Customer Dependencies specified in the relevant Product Description, and any system or environmental requirements published in Snowplow’s documentation or otherwise notified to the Customer by Snowplow; and
(ii) in respect of Insights Services, any Customer Dependencies specified in the Statement of Work,
in each case together with access to such technical data, computer facilities, documentation or other information, resources and personnel as is reasonably required by Snowplow in order for it to provide the Products and/or Insights Services (as the case may be);
Data Protection Legislation means the UK Data Protection Legislation, the General Data Protection Regulation (2016/679) and any other applicable legislation relating to personal data and all regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the terms ‘Controller’, ‘Processor’, ‘Personal Data’ and ‘Data Breach’ shall have the meaning given to them in such Data Protection Legislation;
Disclosing Party means a party to this agreement which (or whose affiliate) discloses or makes available, directly or indirectly, Confidential Information;
Effective Date means the date specified as such on the Order Form;
Renewal Term has the meaning given to it in clause 14.1;
Initial Term means the initial term of this Agreement as specified on the Order Form;
Intellectual Property Rights means any patents, rights to inventions, copyright, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Open Source Software means the software which is shipped with a Product but which is licensed on terms conforming to any of the “Free Software Definition” published by the Free Software Foundation or the “Open Source Definition” published by the Open Source Initiative, including the Apache license, the MIT and BSD licenses and the GNU license family;
Order Form means the Snowplow order form identifying the Customer (and any Affiliate of the Customer as the case may be) and setting out the Products and corresponding Charges and referencing these Terms;
Products means the Snowplow products (including the Software and the Open Source Software) and as further set out on the Order Form;
Product Description means, in respect of a Product, the description of it published on Snowplow’s website https://snowplowanalytics.com/terms-of-service/snowplow-insights-product-description/ and as updated from time to time;
Receiving Party means a party to this Agreement which (or whose Affiliate) receives or obtains, directly or indirectly, or has access to, Confidential Information;
Services means in respect of a Product, technical support for that Product in accordance with the Product Description and any other associated services;
Software means the Snowplow owned software components of any Product which are delivered to the Customer under the terms of this Agreement, but excluding the Open Source Software;
Snowplow means Snowplow Analytics Inc., a New York corporation with its principal place of business at Snowplow Analytics Inc. 149 New Montgomery Street, Suite 315, San Francisco, CA, 94105;
Special Terms means any special additional or varied terms set forth in the Order Form in the section marked “Special Terms”;
Taxes means any and all taxes, including without limitation, sales, use, service, occupation, personal property, value-added and excise taxes and any other fees, assessments or taxes which may be assessed or levied by any taxing authority for Customer’s use of the Products and/or Services, excluding any taxes based on Snowplow’s income, in any relevant jurisdiction;
Term means the Initial Term and any Renewal Term; and
Use means, in respect of Software, only those acts of storage, loading, execution and display as are reasonably necessary to the Customer’s enjoyment of the relevant Product in accordance with this Agreement (but without prejudice to the Customer’s applicable non-waivable statutory rights in respect of such Software).
1.2 In this Agreement, the words “in particular”, “such as”, “include” or “including” do not denote an exhaustive list, and references to laws are references to those laws as amended, re-enacted and/or replaced from time to time.
1.3 Any Special Terms set forth in the Order Form will take precedence over the rest of this Agreement and in the event of a conflict between the Special Terms and the Order Form or these Terms, the Special Terms shall prevail.
2.1 Each Product consists of the Software and shall conform in all material respects to the applicable Product Description.
2.2 Subject to the Customer’s payment of the Charges and compliance with the terms of this Agreement, for each Product ordered Snowplow will:
a) license the relevant Software to the Customer as further set out in clause 3 (Software License) of this Agreement;
b) provide any relevant support Services in accordance with clause 5 (Support Services) of this Agreement,
in each case if and only to the extent included in the relevant Product.
2.3 The Customer will not (and will not permit or encourage any other person to):
a) reverse engineer, disassemble, decompile or translate any Product, or otherwise attempt to derive the source code of any Product, except to the extent: (i) required to give effect to a right granted to the Customer under the license terms of any Open Source Software provided with or included in the relevant Software to re-link a modified version of that Open Source Software with the relevant Software; or (ii) explicitly allowed under applicable law which cannot be waived by contracting parties;
b) resell, lease, rent, license, sublicense, transfer, assign, or redistribute or otherwise make the benefit of the Products available to any third party (save in accordance with clause 3.2),
c) use any Product to compete, directly or indirectly, with Snowplow; or
d) use or deal with any Product in any way which is unlawful in any relevant jurisdiction, or to process any Customer Data which is unlawful, defamatory, harassing, obscene.
3 Software License
3.1 Snowplow grants to the Customer a non-exclusive, non-assignable license to Use the Software as part of the Product from the Effective Date until the termination of this Agreement, only for the Customer’s own internal business purposes.
3.2 Where this Agreement is for the benefit of the Customer’s group of companies, each Affiliate of the Customer is granted a non-exclusive, non-assignable license to Use the Software as part of the Product where that Affiliate has signed an Order Form directly with Snowplow. The Affiliate may select a different Product to the Customer, any such Product and the corresponding Charges shall be set out in the Affiliate’s Order Form, and any such Order Form shall incorporate the terms of this Agreement.
3.3 Snowplow expressly reserves the right to incorporate into the Software any modifications, extensions or improvements to the Software it may create (in the course of providing any Services or otherwise) and to make such modifications, extensions and/or improvements generally available.
4.1 Snowplow will use its reasonable efforts to provide the Services in accordance with its support policy as set out in the applicable Product Description. The Customer acknowledges and agrees that the support policy is subject to change from time to time, provided that if during the Initial Term Snowplow changes it in a way which results in a significantly lower level of Services for the relevant Product, then those changes will not come into effect as against the Customer until the start of the next Renewal Term.
4.2 Where the scope of Services (as set out in the Product Description) includes initial set-up, Snowplow will, subject to the Customer’s cooperation and compliance with Snowplow’s instructions, perform that initial set-up within a reasonable time.
4.3 Snowplow may assist the Customer on an ad hoc basis with any advice, opinion, statements or additional services (Statements) with the intention of helping the Customer (where requested by the Customer) to achieve the full benefit of the Products. The Customer agrees that any such Statements are made by Snowplow in goodwill and under the terms and conditions of this Agreement (including Snowplow’s limitation of liability set out in clause 11) and as such the Customer shall not place any reliance on any such Statements.
5.1 Unless otherwise specified in the Order Form, Snowplow will invoice the Customer as follows:
a) for the initial setup Charges (if any) in respect of a Product, on or shortly after the Effective Date or (if relevant) on or shortly after Go Live for the relevant Product;
b) for the recurring Charges in respect of a Product, charges shall be calculated in accordance with the terms of the Order Form with respect to same; and
c) for any Services in full in advance or as otherwise agreed and set out on the Order Form.
5.2 The Customer will pay each invoice in full by the due date as set out in the Order Form.
5.3 All Charges are exclusive of Taxes. Where Taxes are payable in respect of any Charges, Snowplow will add such Taxes to its invoice at the appropriate rate, and the Customer will pay such Taxes together with such Charges.
5.4 If the Customer has not paid an invoice by its due date for payment, Snowplow may charge interest, from the date on which payment was due until the actual date of payment (whether before or after judgment), at a rate of 4% per month or the highest rate allowed by applicable law, whichever is lower, accruing daily. The Customer will be responsible for paying the accrued interest together with the overdue amount.
5.5 The Customer will pay all amounts due to Snowplow under this Agreement in full and without any set-off, counterclaim, deduction or withholding.
5.6 With effect from the start of any Renewal Term, the Charges shall increase solely to reflect any percentage increase in the ‘All items’ category of the Consumer Prices Index as published by the U.S. Bureau of Labor Statistics from the Effective Date to the last day of the |nitial Term. Snowplow shall give the Customer not less than 45 days’ prior written notice of any such inflationary increase to the Charges.
5.7 Notwithstanding clause 5.6, Snowplow may, with effect from the start of any Renewal Term, adjust the Charges for any reason by providing not less than 45 days’ prior written notice to the Customer. For clarity, any adjustment to the Charges is without prejudice to the Customer’s right to elect not to renew pursuant to clause 14.1.
6 Representations and Warranties
6.1 Each of Snowplow and the Customer represents and warrants that it has all necessary consents, approvals and authorities to enter into and perform this Agreement.
6.2 The Customer represents and warrants that the Customer Data does not contain any material which:
a) is criminal, defamatory, obscene, otherwise unlawful, harassing of any person, or which tends to promote hatred or discrimination; or
b) infringes the intellectual property rights or other rights of any party, and the foregoing representations and warranties shall be deemed made upon each occasion on which it processes (or causes to be processed) additional Customer Data using a Product.
7.1 Snowplow will use reasonable care and skill to provide the Product and Services. Snowplow will provide to the Customer such information about Snowplow’s security policies and practices as the Customer may reasonably request.
7.2 Depending on the Product, Snowplow may have access to the Customer’s own Cloud Computing Platform infrastructure. In those cases, the Customer will ensure that it configures Snowplow’s access as specified by Snowplow and, in particular, shall grant no additional privileges to Snowplow. The Customer is solely responsible for, and will appropriately secure, its Cloud Computing Platform and associated access credentials, and Snowplow will have no liability to the Customer for (i) any actual or suspected security breach in respect of the Customer’s Cloud Computing Platforms not directly caused by Snowplow’s breach of this Agreement, (ii) or declining to follow any instructions that Snowplow believes could damage the integrity of the security of the Cloud Computing Platform or any activities undertaken by Snowplow in accordance with Customer’s written instructions.
7.3 Each of Snowplow and the Customer will keep the relevant account access credentials secure and will not disclose them to any other person. Where Snowplow and the Customer exchange access credentials, they will do so using an appropriate secure methodology or service. Each of Snowplow and the Customer will ensure that it uses that methodology or service correctly and in accordance with best security practice.
8 Data Privacy
8.1 The Product may be configured by the Customer such that Snowplow has (1) access to the Customer Data, and (2) the Software performs operations on the Customer Data, (such as data validation and enrichment). It is the Customer’s sole responsibility to determine what (if any) personal data will be collected as part of the Customer Data and how it will be processed by Snowplow.
8.2 Snowplow shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data that is not wholly or directly attributable to the processing activities performed by Snowplow.
8.3 The Customer will ensure that it has all the necessary and appropriate consents and notices in place to enable the lawful collection and processing of the Customer Data and any personal data contained therein for the duration and purposes of this Agreement and will indemnify Snowplow against any losses, claims, expenses or fines incurred by Snowplow as a result of the Customer’s breach of this clause 8.3.
8.4 The parties agree to comply with any applicable legislation, regulations or government orders in relation to the processing of personal data and where the Customer Data includes personal data of citizens of the EU or the UK, the parties shall enter into the standard contractual clauses required by the European Commission’s Decision of 4 June 2021 implementing decision (EU) 2021/914.
9 Intellectual Property
9.1 Nothing in this Agreement will change the ownership of any of the Intellectual Property Rights of either party. In particular, the Customer acknowledges that the Products (including the Software) and Snowplow’s know-how and expertise in performing the Services are the valuable property and/or Confidential Information of Snowplow and/or its licensors, and that it may not make any use of them other than in order to receive the benefit of the Products.
9.2 Except as otherwise set forth herein, Customer has no rights or licenses with respect to the Products (including the Software). Without limiting the generality of the foregoing, except as expressly provided in this Agreement, Customer may not:
a) sell, resell, copy, distribute, rent, lease, lend, sublicense, transfer, assign or make the Products (including the Software) available to any third party, or use the Products on a service bureau basis;
b) modify, decompile, reverse engineer, or disassemble the Products (including the Software) or otherwise attempt to derive any of Snowplow’s Intellectual Property Rights in the Products (including the Software), unless permitted to do so by applicable law;
c) create derivative works based on the Products (including the Software); or
d) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Products during the use and operation thereof.
9.3 As between Snowplow and Customer, any Intellectual Property Rights in and/or changes to, modifications to, or derivative works of the Products (including the Software) shall automatically vest in and become the exclusive property of Snowplow.
9.4 Snowplow shall defend and indemnify the Customer from and against all losses, damages, liabilities, fines, costs, or reasonable expenses arising out of or resulting from any third-party claim against the Customer that the Customer’s use of a Product as permitted by Snowplow under this Agreement infringes the Intellectual Property Rights of that third party, save that Snowplow shall have no liability under this clause 9.4 where:
a) the Customer has combined the Product with any other product and/or software not provided be Snowplow;
b) the Customer has modified or altered a Product not under the instructions of Snowplow and/or such modification was undertaken by any person other than Snowplow; or
c) the Customer has failed to apply applicable updates or upgrades, if any claim would not apply to such update or upgrade.
9.5 The Customer acknowledges that Snowplow has no control over the nature or content of the Customer Data, and the Customer will therefore indemnify Snowplow against any claim brought by a third party against Snowplow on the basis that Customer Data infringes a third party’s rights (including its Intellectual Property Rights).
9.6 Customer may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the Products (including the Software) or modifications or enhancements thereto (the “Customer Input”). Any Customer Input is provided on a non-confidential basis regardless of any suggestion to the contrary in any Customer communication, and Customer hereby grants Snowplow a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Customer Input (directly or through third parties) in any manner without compensation or liability to Customer for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing Snowplow’s products and services and any Intellectual Property Rights that may arise as a result of this clause 9.6 shall automatically vest in and become the exclusive and sole property of Snowplow.
10.1 Both during the Term of this Agreement and for three years after its termination or expiry, the Receiving Party will keep the Disclosing Party’s Confidential Information confidential and, except with the prior written consent of the Disclosing Party, will:
a) not use or exploit the Confidential Information in any way except for the purpose of exercising its rights and performing its obligations under this Agreement;
b) not disclose or negligently or willfully make available the Confidential Information in whole or in part to any third party, except as permitted by this Agreement; and
c) apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information (and which will in any event be no less stringent than the measures required by this Agreement.
10.2 The Receiving Party may disclose the Disclosing Party’s Confidential Information to those of its sub-contractors and its and their agents, officers, employees and professional advisers who need to know it in connection with this Agreement (each, a “ Permitted Disclosee”), provided that:
a) it informs each Permitted Disclosee of the confidential nature of the Confidential Information before disclosure; and
b) it has entered into a confidentiality agreement with each such Permitted Disclosee that no less onerous as set forth in this clause 10 as if it were the Receiving Party,
and the Receiving Party will be liable for the failure of any Permitted Disclosee to comply with this clause 10.
10.3 The Receiving Party may disclose Confidential Information:
a) to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority with jurisdiction over the Receiving Party, or by a court of competent jurisdiction, provided in each case that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much advance warning of such disclosure as possible and takes into account the reasonable requests of the Disclosing Party in relation to the content of that disclosure; and
b) in the course of a proper due diligence process in furtherance of a bona fide acquisition, disposal, investment or similar corporate transaction (whether actual or proposed), to interested parties subject to obligations of confidentiality with respect to the Confidential Information which are no less onerous than those set out in this clause 10.
11.1 This clause 11 sets out Snowplow’s entire liability to the Customer under or in connection with this Agreement.
11.2 NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES SNOWPLOW’S LIABILITY FOR:
a) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE;
b) FRAUD OR FRAUDULENT MISREPRESENTATION;
c) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
11.3 SUBJECT TO CLAUSE 11.2, SNOWPLOW WILL NOT HAVE ANY LIABILITY TO THE CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE AND WHETHER SNOWPLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY) FOR ANY (1) LOSS OF PROFITS OR ACCOUNT OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF AGREEMENTS OR CONTRACTS, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF DAMAGE OR GOODWILL, LOSS OF USE OR CORRUPTION OF DATA OR INFORMATION, OR (2) ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER INDIRECT OR CONSEQUENTIAL LOSSES HOWSOEVER CAUSED.
11.4 SUBJECT TO CLAUSES 11.2 AND 11.3, SNOWPLOW’S TOTAL LIABILITY TO THE CUSTOMER UNDER OR IN CONNECTION WITH ANY OTHER MATTER RELATING TO OR ARISING FROM THIS AGREEMENT, INCLUDING ANY SCHEDULES, STATEMENTS OF WORK, DATA PROCESSING ADDENDUM OR ORDERS MADE THEREUNDER WILL BE LIMITED IN THE AGGREGATE TO AN AMOUNT EQUAL TO THE CHARGES PAID OR PAYABLE BY THE CUSTOMER IN THE 12 MONTHS PRECEDING THE DATE THAT THE CLAIM ARISES.
12 Conduct of a Third Party Claim
12.1 If a third party asserts a claim against the Customer and the Customer wishes to bring a claim against Snowplow under any indemnity provided in this Agreement (an “Indemnity Claim“), then Snowplow is only liable under that indemnity if:
a) the Customer promptly notifies Snowplow of such Indemnity Claim (and in any event within an amount of time sufficient to permit Snowplow to take appropriate action within the applicable time limits) and takes no action to admit, settle or otherwise dispose of such Indemnity Claim without Snowplow’s prior written consent;
b) Snowplow retains sole control of the defense of such Indemnity Claim and all negotiations for its settlement or compromise (including free choice of counsel, other professional advisers and experts); and
c) the Customer provides all reasonable assistance requested by Snowplow or its professional advisers.
13 Force Majeure
13.1 A “Force Majeure Event” is any event or circumstance not within a party’s reasonable control that directly prevents or materially hinders that party from performing its obligations under this Agreement, including (in the case of Snowplow) failures or outages at upstream or infrastructure suppliers (including but not limited to relevant Cloud Computing Platforms).
13.2 Provided it has complied with clause 13.3, if a party experiences a Force Majeure Event (the “Affected Party”), the Affected Party will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly, and the corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
13.3 If the Affected Party experiences a Force Majeure Event for more than 30 days, the party not affected by the Force Majeure Event may terminate this agreement by written notice to the Affected Party.
14 Term and Termination
14.1 This Agreement will be effective from the Effective Date until the end of the Initial Term, whereupon it will renew automatically for successive additional terms (each such period, a “Renewal Term”) of a duration equal to the Renewal Term duration specified on the Order Form unless either party gives not less than 30 days’ prior written notice to the other, that it does not wish to renew this Agreement beyond the Initial Term or any Renewal Term.
14.2 Either party may terminate this Agreement immediately if:
a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default 30 days or more after being notified of such failure of payment;
b) the other party commits a material breach of this Agreement which, if capable of cure, has not been cured within 30 days of receipt of notice of breach by the non-breaching party;
c) the other party (i) if the other party becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, the other party may only terminate this Agreement if such party shall fail to have such petition or proceeding dismissed within sixty (60) days.
d) there is a change of control of the other party such that the other party’s core commercial intention is to sell or otherwise promote guns, explosives or other weaponry.
15.1 Snowplow may, by notice in writing to the Customer (which may be by email), update these Terms from time to time, for example to reflect changes in law or best practice, or changes in how its business operates. If the Customer raises a reasonable objection to such changes within thirty (30) days of receipt of notice from Snowplow, and Snowplow is unable to resolve that objection to the Customer’s reasonable satisfaction, then the Customer may by written notice to Snowplow terminate this Agreement.
15.2 This Agreement (and the documents referred to in it) constitutes the entire agreement between the parties, and supersedes any previous agreement, relating to the subject matter of this Agreement.
15.3 Each party acknowledges that it has not relied on or been induced to enter this Agreement by a representation, warranty or undertaking (whether contractual or otherwise) other than those expressly set out in this Agreement.
15.4 A waiver of any right under this Agreement is only effective if it is in writing.
15.5 A notice under or in connection with this Agreement: must be in writing; must be in the English language; and must be delivered personally or sent by email or first class mail to the party due to receive the notice at its principal office (in the case of Snowplow) or to the address specified in the Order Form (in the case of the Customer).
15.6 A person who is not a party to this Agreement shall have no rights hereunder as a third party beneficiary to enforce any term of this Agreement.
15.7 This Agreement is to be construed in accordance with and governed by the internal laws of the State of New York, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties only in the courts of the State of New York, New York County, or, if it has or can acquire the necessary jurisdiction, in the United States District Court for the Southern District of New York. Each of the parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION BETWEEN THE PARTIES.
15.8 Nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.
15.9 Neither party may assign, novate or otherwise deal, in whole or in part, this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, delayed or conditioned. Any purported assignment, sale, transfer, delegation or other disposition of this Agreement, except as permitted herein, shall be null and void.
15.10 If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) shall remain in force.
15.11 Any Order Form and/or Statement of Work which incorporates these Terms by reference may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.