Salesmsg Messaging Services Agreement

This Salesmsg Messaging Services Agreement (“MSA”) is entered into as by and between SalesMessage, Inc (“Salesmsg”), a Delaware corporation having its principal offices at 1045 East Atlantic Ave #202, Delray Beach, FL 33483 and the entity entering into this MSA with Salesmsg through a corresponding Order Form or otherwise (“Company”, and together with Salesmsg, each a “Party” or jointly as the “Parties”). In consideration of the mutual obligations contained in this Agreement, the Parties agree as follows:

1. DEFINITIONS. All capitalized terms shall have the meanings ascribed to them in this Section 1 or elsewhere in this Agreement or associated Order Form.
   1. “Admin User” means the Customer employee who has access to certain additional features and functionalities of the Messaging Services to monitor and administer the Customer’s account without limitation the ability to grant access to the Messaging Services to Authorized Users.
   2. “Affiliate” means, with respect to either Party, any person directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party. For purposes of this Agreement, the word “control,” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, or ownership of at least 50 percent (50%) of the voting securities of such person.
   3. “Agreement” means this MSA in combination with any associated Order Form(s).
   4. “Applicable Law” means any law, regulation, rule, or order of any government authority applicable to a Party, its business, or the subject matter of this Agreement, including but not limited to the following United States (and  if  applicable,  Canadian)  statutes  and  any  regulations  relating  thereto:  the  Telephone  Consumer Protection Act, the Telephone Consumer Fraud & Abuse Prevention Act, the Controlling the Assault of Non- Solicited Pornography and Marketing (CAN-SPAM) Act, the Children’s Online Privacy Protection Act, and (if applicable) Canada’s Anti- Spam Legislation.
   5. “Authorized User” means an employee, contractor, or agent of Customer who is authorized to use the Messaging Services and has access to the Messaging Services via a unique username and password under Customer’s Account.
   6. “Confidential Information” means any information, however disclosed by a Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) that is when disclosed or within thirty (30) days of disclosure designated or described as “Confidential,” “Proprietary,” or information that the Receiving Party knows, or reasonably should have known, was the Confidential Information of the Disclosing Party
   7. “Content” means any and all text, pictures, video, or any other type or form of information contained in the body of any Message.
   8. “Salesmsg APIs” means any application programming interface provided by Salesmsg as part of its Messaging Services, which allows customers like Customer to establish access to the Messaging Services for sending and receiving Messages, uploading and managing contacts, and other service-related access.
   9. “Inappropriate Content” means any Content that (a) violates Applicable Law, (b) violates any Salesmsg policies including without limitation Salesmsg’s Acceptable Use Policy, or is otherwise unsolicited, including without limitation, spam or other unsolicited commercial or  other  advertising  material,  (c)  violates  any  authoritative  industry  guidelines,  or  violates  any  Network Operator requirements, conditions, or codes of practice, (d) is racist, harassing, defamatory, libelous, abusive, threatening, demeaning, vulgar, pornographic, obscene, coercive or objectionable, including material that is false, misleading or inaccurate, (e) violates the rights of any person or company protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, (f) contains any malicious programs including viruses, worms, Trojan horses, e-mail bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data or personal information, including executing any form of network monitoring that will intercept data not expressly approved for use, or (g) Salesmsg reasonably believes in its sole discretion could subject it to criminal or civil liability or cause it to lose its common carrier status.
   10. “Message(s)” means any short-message service message (SMS), multi-media service message (MMS), or other form of message supported by the Messaging Services that is free of Inappropriate Content.
   11. “Messaging Services” means the Salesmsg text-based and related communications services accessible via Salesmsg’s  website  (www.salesmessage.com),  mobile  applications,  and  APIs  that  are being  provided by  Salesmsg to Customer on a non-exclusive basis.
   12. “Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which Salesmsg can directly transmit and receive Messages.
   13. “Order Form” means any order form signed by the Parties that indicates the Messaging Services to be provided Salesmsg and the fees to be paid by Customer and which also incorporates by reference this Agreement.
   14. “Pass Through Fees” means any fees imposed by a Network Operator or Third Party to deliver any Message.
   15. “Third Party” means any person not a Party to this Agreement.
2. SALESMSG SERVICES.
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   1. Messaging Services. Subject to the terms and conditions of this Agreement, Salesmsg will make the Messaging Services, including the Salesmsg APIs, available to Customer on a non-exclusive basis.
   2. Access to Services. Customer’s Admin User may allow such number of Customer employees and/or independent contractors as is indicated on an Order Form to use the Messaging Services on behalf of Customer as Authorized Users, provided each Authorized User creates a unique password-protected account. All Authorized Users shall be deemed part of Customer’s account, and Customer is responsible  for  all  use  (whether  or  not  authorized)  of  the  Messaging  Services  conducted  via  Customer’s account, including all charges related to such use without limitation.
   3. Suspension of Access. Salesmsg may suspend Customer’s account and access to the Messaging Services at any time and without prior notice if Salesmsg reasonably believes that any use of the Messaging Services via Customer’s account is in violation of this Agreement. Although Salesmsg is under no obligation to monitor Customer’s use of the Messaging Services, Salesmsg may do so and may prohibit any use it reasonably believes may be or alleged to be in violation of the foregoing provided; however, that Customer shall not have any right to transfer such dedicated short code and Salesmsg shall not have any obligation to assist in any requested transfer by Customer until (i) after the first anniversary date of the Effective Date of this Agreement, and (ii) Customer has paid in full all amounts due to Salesmsg pursuant to this Agreement.
   4. Affirmative Consent. Customer will only send Messages to end users who have affirmatively consented (“opted-in”) to receive such Messages, and Salesmsg will automatically assume and rely on the foregoing obligation of Customer. Customer acknowledges and agrees that using the Messaging Services to send Messages to phone numbers that have not affirmatively consented or that have subsequently opted out is a material breach of this Agreement and contrary to Applicable Law. Customer is prohibited from using third party lists whether consent has been gathered or not.
   5. Opt-Out. Customer will include clear opt-out or unsubscribe instructions in its messages when required by Applicable Law, and Customer agrees to comply with all Network Operator policies including CTIA’s Messaging Principles and Best Practices without limitation, if and when applicable to Customer’s  Messages. Customer  shall  honor  any  such  opt-out  requests  immediately. Customers will honor all opt-out requests by sending one final opt-out confirmation message to notify the consumer that they have opted-out successfully. Unless a valid opt-in is re-obtained, no further messages will be sent following the confirmation message.
   6. Customer Responsibilities.  Customer will: (a) be solely responsible for all use of the Services and Documentation under Customer´s account and each Customer Application; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to Customer´s End Users in connection with the use of each Customer Application as permitted herein) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the Salesmsg Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of Customer´s End Users, including their compliance with this Agreement, the Salesmsg Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Salesmsg promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with Customer´s representations and warranties set forth in Section 5 (Representations And Covenants; Warranties Disclaimer; Limitation Of Liability).
   7. Message Content. Customer is solely responsible for the Content of any Message it or any third party on its behalf generates and sends to end-users through the Messaging Services, and Customer shall not  use  the  Messaging  Services  or  permit  any  Messaging  Services  to  be  used directly  or  indirectly to transmit Inappropriate Content.
   8. Rights in the Content. Except for stock images made available to Customer by the Messaging Services, Customer represents and warrants that it has all rights, title, and interests necessary to transmit such Content to and via the Message Services and that Customer’s provision of the Content does not infringe any third party’s proprietary or personal rights, including without limitation, any trademark, copyright, patent, or trade secret. By providing any such information or materials to Salesmsg (other than information required for Customer’s use of the Messaging Services as contemplated herein), Customer grants to Salesmsg an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials for the purpose of Salesmsg performing its obligations under this Agreement.
   9. Provisioning of Services. Customer acknowledges and agrees that Salesmsg is a regulated telecommunications carrier, serving as a passive conduit that provides telecommunication services consisting of the processing and delivery of Customer’s messages to Network Operators and that the final delivery of Messages to end-users is the responsibility of Network Operators and outside of Salesmsg’s control. Customer acknowledges and agrees that all Messages are subject to Network Operator policies and conditions, including without limitation maximum message length and that the time it takes to transfer a Message to an end-user and whether the end-user receives the Message is dependent upon a number of conditions prevailing at the time of submission, many or all of which are outside of Salesmsg’s control and that Salesmsg will not be liable to Customer for any losses, costs, or damages incurred as a result of (a) the actions of any Network Operator, (b) the unavailability of the Messaging Services, or (c) the delay or failure of any  Message  in  reaching  one  or  more  end-users.  Salesmsg  reserves  the  right  to  segment,  truncate,  or otherwise reduce the length of any Message or to refuse to transmit and/or deliver a Message that does not comply with any Network Operator’s policies or conditions.
   10. Sales Message Platform Maintenance. Salesmsg may, from time to time and without notice to Customer, upgrade, maintain, or migrate the App and/or the Services. In the event Salesmsg determines that it is necessary to interrupt the App and/or the Services or that there is a potential for the App and/or the Services to be interrupted for the performance of system maintenance, Salesmsg will use reasonable commercial efforts to notify Customer prior to such interruption. Salesmsg will use reasonable commercial efforts to schedule system maintenance during non-peak hours (midnight to 6 a.m. local time). In no event shall interruption for system or emergency maintenance constitute a failure of performance by Salesmsg.
   11. Data Use, Storage and Access. Customer acknowledges that Salesmsg may establish general practices and limits concerning use of the Service but that Salesmsg has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. Unless expressly agreed to by Salesmsg in writing elsewhere, Salesmsg has no obligation to store any of Customer´s Content. Salesmsg has no responsibility or liability for the deletion or accuracy of any Content, including Customer´s Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Salesmsg. Customer is solely responsible for applying the appropriate level of access to Customer´s Content. If Customer does not choose, the system may default to its most permissive setting. Customer agrees that Salesmsg retains the right to create reasonable limits on the use and storage of the Content, including Customer´s Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Salesmsg in its sole discretion. Customer further acknowledges that sole responsibility for securing and backing up any Content.
   12. No Guarantee of Message Privacy. Customer acknowledges and agrees that Messages may be transmitted  in  an  unencrypted  format  and  Salesmsg  cannot  guarantee  the  privacy  of  any  message. Customer agrees that Salesmsg will not be liable to Customer or any third party for any lack of privacy or security regarding message content by virtue of using the Messaging Services.
   13. Limitations on Message Transmissions. Salesmsg shall have the right not to accept, transmit or deliver any Message that Salesmsg or any Network Operator reasonably believes, exercising reasonable discretion based on industry experience, contains Inappropriate Content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including without limitation any law enforcement, proceeding, process, or inquiry.
   14. Account Suspension. Salesmsg may suspend, terminate, or otherwise deny Customer access to or use of all or any part of the Messaging Services without incurring any resulting obligation or liability if Salesmsg reasonably believes, exercising reasonable discretion based on industry experience that (a) the traffic created  from  Customer’s  account  is  fraudulent  or  negatively  impacting  the  operating  capability  of  the Messaging Services, (b) Customer’s use of the Messaging Services is not in compliance with Applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Messaging Services, (c) there is any use of the Messaging Services by Customer that in Salesmsg’s reasonable judgment threatens the security, integrity, or availability of the Messaging Services, or Salesmsg’s legal status as a common carrier under applicable law, or (d) Customer has materially breached this Agreement. Salesmsg will use commercially reasonable efforts under the circumstances to (i) provide Customer with notice and where practicable an opportunity to remedy such violation or threat prior to any such suspension, (ii) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g. to certain phone numbers, sub-accounts or other subset of traffic), and (iii) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
   15. Forecasting. Customer agrees to use commercially reasonable efforts to provide any anticipated usage information reasonably requested by Salesmsg solely for the purpose of assisting Salesmsg in developing a projection of Customer’s anticipated minimum and maximum usage of the Messaging Services for the next 6 months. Such forecasts may include the anticipated number of Messages per day, the peak Messages  per  hour  and  per  minute.  Salesmsg  may  update  these  six-month  projections  and  forecasts quarterly.
   16. Compliance with Laws. Customer will comply with all Applicable Laws and Network Operator rules and directions while using the Messaging Services and will not transmit any communication that would violate any federal, state or local law, court order or regulation. Customer will cooperate with Salesmsg, Network Operators and/or governmental authorities in investigations alleging a violation of any law, rule or regulation. The Parties shall cooperate by (a) notifying each other of any enforcement action, governmental investigation, governmental inquiry, or other communications with any governmental authority relating to performance of this Agreement, unless doing so would violate such action, investigation, inquiry, or request, and (b) negotiating with the other Party in good faith and adopting any modifications to this Agreement necessary to comply with the laws, rules, and regulations.
   17. Technical Support. Salesmsg will provide Customer with technical support for the Messaging Services in accordance with Salesmsg’s policies, including, without limitation, providing all necessary and commercially reasonable error corrections, fixes, and workarounds, to promptly remedy any errors associated  with  the  Messaging  Services,  and  will  use  commercially  reasonable  efforts  to  provide  such support during Salesmsg’s standard business hours.
   18. Reverse Engineering Prohibited. Except as allowed by Applicable Law, Customer will not reverse engineer, decompile, disassemble, derive, or otherwise create, attempt to create or derive or assist anyone else to create or derive the source code of any software provided in connection with the Messaging Services.
   19. California Consumer Privacy Act of 2018. As part of the Messaging Services, Salesmsg hosts and processes data, including personal information, about the contacts Customer wishes to communicate with  by  using  the  Salesmsg  Platform.  The  parties  acknowledge  and  agree  that  Salesmsg  is  a  “service provider” as defined by the California Consumer Privacy Act of 2018 (“CCPA”) (Cal. Civ. Code § 1798.100 et seq.).  This  means  that  Salesmsg  processes  personal  information  on  Customer’s  behalf  when  Customer discloses to Salesmsg the personal information of contacts (“Contact Data”) in order to use our Messaging Services. When Salesmsg process Contact Data on Customer’s behalf, Salesmsg agrees that it will not (a) retain, use, or disclose Contact Data we process in connection with the Messaging Services for any purpose other than for performing the Messaging Services in this Agreement and Customer’s instructions, (b) use or process Contact Data for commercial purposes or direct marketing, (c) sell or promote the sale of Contact Data, and (d) disclose or transfer Contact Data to unauthorized personnel or parties, or outside the direct business relationship between Customer and Salesmsg.
   20. Data Security. In providing the Messaging Services, Salesmsg employs data security protocols and measures consistent with generally accepted industry standards, and in any event no less than commercially reasonable standards, considering the types and nature of the data (including Contact Data) processed, stored, accessed, collected and/or used by Salesmsg and/or its permitted affiliates, agents, consultants,  personnel  and  other  representatives  in  the  provision  of  the  Messaging  Services,  and  all applicable laws and regulations. Salesmsg maintains a data breach plan and upon the occurrence of any data breach with respect to the Messaging Services or the systems maintained by or on behalf of Salesmsg affecting the Contact Data or the Messaging Services, Salesmsg will comply with all applicable laws and implement the procedures required under such data breach plan.
   21. Marketing and Performance Data Usage. The Customer hereby grants Salesmsg the right to use the Customer’s company name, logo, and non-confidential performance data for Salesmsg’s sales, marketing, and promotional purposes. Such usage may include, but is not limited to, the creation of case studies, testimonials, and the inclusion of the Customer’s company name and logo on Salesmsg’s website and other marketing materials. Salesmsg agrees to utilize this information in a manner consistent with all applicable laws and regulations and shall not disclose any confidential or sensitive information.
3. FEES AND PAYMENTS
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   1. Fees. Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.4 (Late Payments, Payment Disputes and Interest), Customer will pay the Fees due hereunder in accordance with this Section 3 (Fees and Payments). Customer shall pay to Salesmsg the amounts set forth in the Order Form attached here to with respect to the Messaging Services provided by Salesmsg and any Pass-Through Fees incurred and invoiced by Salesmsg in connection with any Messaging Services provided by Salesmsg hereunder.
   2. Pass Through Fees. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Fees then Salesmsg, at its discretion, may pass through such Pass- Through Fees to Customer at cost. Pass-Through Fees will be added to the monthly invoice in USD. The rate of exchange to be used to compute the Pass-Through Fees from CAD to USD shall be the monthly average rate equal to the New York foreign exchange rate quoted by the Wall Street Journal. The monthly average exchange rate is the average for the rate published on the first and the last day of the month.
   3. Invoicing and Payment.  All fees that become due must be paid upfront, commensurate with the start of your contract term and in accordance with the agreed-upon invoicing frequency or billing cycle, as stated on your Order Form. Any invoiced charges are due net 30 days from the invoice date. Unless otherwise specified in the Order Form, all undisputed payments are due and payable by Customer to Salesmsg in United States dollars upon receipt of the invoice. Pursuant to Section 3.4 (Late Payments, Payment Dispute and Interest), if the Customer disputes any amounts set forth in the invoice Customer shall notify Salesmsg within 15 days of the receipt and the Parties shall work together in good faith to resolve such dispute. If Customer requires a purchase order for payment, no terms on any purchase order provided by Customer will be binding on Salesmsg to the extent they differ from the terms of this Agreement.
   4. Late Payments, Payment Disputes and Interest. Customer will notify Salesmsg in writing within fifteen (15) days of the date Salesmsg bills Customer for any Fees that Customer wishes to dispute. Where Customer is disputing any Fees, Customer must act reasonably and in good faith and will cooperate diligently with Salesmsg to resolve the dispute. Salesmsg will not charge Customer a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless Customer fails to cooperate diligently with Salesmsg or Salesmsg determines the dispute is not reasonable or brought in good faith by Customer. Undisputed payments not received by the due date will be assessed a  finance  charge  of  1.5  percent  per  month.  If  Customer  is  paying  by  credit  or  charge  card,  Customer acknowledges and agrees that this Agreement constitutes a services agreement for the term specified in the Order Form and that Customer is not entitled to any refund.
   5. Taxes. Customer will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Messaging Services purchased by Customer. Salesmsg will pay all taxes on its income and all taxes and insurance associated with its personnel.
   6. Free Trials and Other Promotions. Any free trial or other promotion that provides a Registered User-level access to the Services must be used within the specified time of the trial. At the end of the trial period, unless specifically stated otherwise by the Salesmsg, Customer´s subscription will automatically continue on a paid subscription basis, subject to Service Subscription Fees, unless Customer takes action to cancel the subscription. If Customer are inadvertently charged for a subscription, please provide adequate notice to Salesmsg pursuant to Section 8.2 (Notices) of this Agreement.
   7. Custom Work. Notwithstanding the terms outlined in this Section 3 (Fees and Payments), Custom Work refers to any additional development requested by Customer, that is not included within the standard features of the SaaS platform and scope of services as described in Section 2 (Sales Message Service), of this Agreement. Salesmsg reserves the right to decline any requests for Custom Work at its sole discretion. Custom Work may include, but is not limited to;
      1. Integration with third-party systems that are not supported by default.
      2. Development of custom reporting features.
      3. Creation of unique workflows or automation rules specific to Customer.
   8. Conditions For Custom Work. Custom Work will be subject to separate fees, terms, and timelines as mutually agreed upon by both Parties in a written proposal, pursuant to Section 3.10 (Custome Work Proposal and Scope of Modification), prior to the commencement of any such work. Furthermore, Customer agrees that these additional fees are non-refundable. Customer further agrees that any delays or additional costs resulting from Custom Work will not impact the payment obligations for SalesMsg’s standard features and services as described in this Agreement.
   9. Custom Work Related Fees. The fees for custom work shall be determined based on the specific scope and resources required for each project, and as outlined below;
      1. Senior Developer. Services rendered shall be billed at a rate of $250 per hour.
      2. Junior Developer. Services rendered shall be billed at a rate of $150 per hour.
      3. Project Management and Oversight.  Services rendered shall be billed at a rate of $200 per hour.
      4. Data Engineer.  Services rendered shall be billed at a rate of $200 per hour.
   10. Custom Work Proposals and Scope Modifications. A detailed proposal outlining the scope, estimated hours, and total cost of the custom work will be provided to the Client for approval prior to the commencement of any work. Any modifications to the scope during the development process may result in adjustments to the final fees, pursuant to Section 3.12 (Change Order Policy).
   11. Payment for Custom Work. Payment for custom work shall be due upon the completion of specific milestones as agreed upon in any such proposal as it relates to Section 3.10 of this Agreement (Custom Work Proposals and Scope Modifications). The parties must mutually agree upon adjustments to the milestones and any corresponding payment schedule. The final payment shall be due upon completing such custom work and formal acceptance by the Customer. Without prejudice to the aforementioned provision herein, the period for formal acceptance shall not exceed three (3) business days.
   12. Change Order Policy. In the event that any modifications to the scope of custom work are required during the development process, the following change order policy shall apply;
       1. Change Request Initiation. Customer may request changes to the scope of custom work. Such requests must be made in writing and include a detailed description of the proposed changes.
       2. Review and Impact Analysis. Upon receipt of a change request, Salesmsg will review the proposed changes and assess their impact on the project, including but not limited to the estimated hours, resources required, and any adjustments to the timeline and fees.
       3. Change Order Proposal. Salesmsg will provide the Customer with a written Change Order Proposal detailing the scope of the requested changes, the estimated additional hours and resources required, any adjustments to the timeline, and the revised cost. Such a proposal shall also outline any impacts on the current milestones and payment schedule.
       4. Mutual Agreement. The parties shall agree in writing to the terms outlined in the Change Order Proposal before any work related to the requested changes begins. The agreed-upon changes will be documented as an amendment to the original Custom Work Proposal and Scope Modification.
       5. Adjustment of Fees. Any changes to the scope of custom work may result in adjustments to the final fees. The Customer agrees to pay any additional fees as specified in the mutually agreed Change Order Proposal. These additional fees are non-refundabe.
   13. Third-Party Costs. Any third-party costs or licensing fees necessary for the completion of custom work shall be billed to Customer, provided that such costs are disclosed with full transparency and receive prior written approval from Customer.
4. TREATMENT OF CONFIDENTIAL INFORMATION
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   1. Ownership of Confidential Information.  For  purposes of  this  Agreement,  all  Confidential Information is proprietary to the Disclosing Party and will remain the sole property of the Disclosing Party.
   2. Mutual Confidentiality Obligations. A Receiving Party shall (a) use Confidential Information only for the purposes described herein, (b) hold in confidence and protect Confidential Information from dissemination to, and use by, any Third Party, (c) restrict access to Confidential Information to a receiving Party’s employees, and, with Disclosing Party’s prior written consent, agents, and consultants, who need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement or are otherwise subject to similar written agreements with respect to the protection of confidential information, and (d) return or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control upon written request of the Disclosing Party. A Receiving Party shall not (i) create any derivative work from Confidential Information of a Disclosing Party, or (ii) reproduce Confidential Information without the prior written consent of the Disclosing Party except as required to accomplish the intent of this Agreement. In the event of any improper disclosure or loss of Confidential Information by the Receiving Party, the Receiving Party will promptly notify the Disclosing Party and reasonably cooperate with the Disclosing Party in investigating and remedying such disclosure or loss and in any subsequent inquiry, dispute or claim arising out of such disclosure or loss.
   3. Confidentiality Exceptions. Confidential Information does not include information that is (a) publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the Receiving Party, (b) lawfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto, (c) already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure, or (d) independently developed  by  the  Receiving  Party  without  reference  to  the  Disclosing  Party’s  Confidential Information.
   4. Authorized Disclosure. Notwithstanding the obligations in Section 4.2 hereof, a Receiving Party may disclose Confidential Information of a Disclosing Party to a court or governmental agency pursuant to statute, regulation, government order, or validly issued subpoena, provided, however, that the Receiving Party shall notify the Disclosing Party in writing as much in advance as is practicable under the circumstances prior to any such disclosure in a good faith effort to provide the Disclosing Party the opportunity to seek a protective order or to contest such required disclosure prior to such disclosure.
   5. Remedies/Liability Limitation as to Confidential Information. The Parties agree that (a) a Receiving  Party’s threatened  or  actual improper disclosure  or  use of  a  Disclosing  Party’s  Confidential Information will cause irreparable injury to the Disclosing Party for which money damages alone would be an inadequate remedy, and (b) a Disclosing Party shall have the right to seek an immediate injunction of any such threatened or actual improper disclosure or misuse of the Disclosing Party’s Confidential Information from any court of competent jurisdiction in the United States without the need for any bond or other security. Except for an action commenced solely for the purpose of seeking an injunction hereunder, a Party must commence or pursue any other claims or remedies against the other Party in accordance with Section 8.8 hereof.
5. REPRESENTATIONS AND COVENANTS; WARRANTIES DISCLAIMER; LIMITATION OF LIABILITY
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   1. Representations and Covenants. Each Party represents and warrants to the other that (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized, (b) it has the right and all necessary authority to enter into this Agreement, (c) upon execution this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, (d) the execution and performance of this Agreement by it will not violate or conflict with Applicable Law, and (e) during the Term it shall materially comply with Applicable Law.
   2. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF ALL OTHER WARRANTIES AND SALESMSG DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY  IMPLIED  WARRANTY  OF  MERCHANTABILITY,  FITNESS  FOR  A  PARTICULAR  PURPOSE,  QUIET ENJOYMENT,  AND  TITLE.  WITHOUT  LIMITING  THE  GENERALITY  OF  THE  FOREGOING,  ANY  SERVICES PROVIDED BY SALESMSG HEREUNDER, INCLUDING WITHOUT LIMITATION THE MESSAGING SERVICES, ARE  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE”  EXCEPT  AS  MAY  BE  SET  FORTH  IN  A  SERVICE  LEVEL AGREEMENT  BETWEEN  THE  PARTIES,  SALESMSG  DOES  NOT  WARRANT  THAT  THE  MESSAGING SERVICES, OR ANY NETWORK OPERATOR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE MESSAGING SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE. SALESMSG DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL.
   3. SPECIFIC DISCLAIMERS. CUSTOMER ACKNOWLEDGE AND AGREE THAT: (I) THE SERVICES CANNOT TRANSMIT COMMUNICATIONS OR OTHER ELECTRONIC REQUESTS TO DEVICES THAT ARE UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.); AND (II) THAT THE SERVICES ARE NOT A SERVICE TO BE RELIED UPON AS THE SOLE MEANS OF RECEIVING CRITICAL INFORMATION. IN NO EVENT SHALL SALESMSG'S APP PROVIDERS BE LIABLE FOR THE SALE, DISTRIBUTION OR CUSTOMER´S USE OF THE APP OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APP. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE APP PROVIDERS SHALL BE THIRD-PARTY BENEFICIARIES TO THIS SECTION 5.3.  CUSTOMER FURTHER ACKNOWLEDGE AND AGREE TO DISCHARGE, WAIVE AND RELEASE THE APP PROVIDERS FROM ANY CLAIMS, LIABILITIES AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO CUSTOMER´S INTERACTIONS WITH SUCH PARTIES AND THEIR PRODUCTS AND SERVICES.  NOTWITHSTANDING ANY OTHER SECTION, SALESMSG DISCLAIMS ALL LIABILITY OF ANY KIND IN RELATION TO THE APP PROVIDERS AND THEIR PRODUCTS AND SERVICES.
   4. LIMITATION OF LIABILITY. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY   INCIDENTAL,   INDIRECT,   SPECIAL,   CONSEQUENTIAL,   PUNITIVE   OR   EXEMPLARY   DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, AND COSTS OF LOST OR DAMAGED DATA, EVEN IF AND REGARDLESS OF WHETHER IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  THE LIMITATIONS IN SECTION 5.4 AND DO NOT APPLY TO (a) CUSTOMER´S BREACH OF SECTION (2.5) CUSTOMER RESPONSIBILITIES; (b) CUSTOMER´S AND CUSTOMER´S AFFILIATES’ BREACH OF SECTION 3 (FEES AND PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION).
   5. IN NO EVENT SHALL SALESMSG’S TOTAL LIABILITY FOR ANY CLAIM(S) OR DEMANDS ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO SALESMSG BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT(S) FROM WHICH THE CLAIM(S) OR DEMANDS AND LIABILITY ARISES. THE LIMITATIONS IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS IN THIS SECTION ARE A MATERIAL BASIS OF THE BARGAIN, AND THE TERMS OF THIS AGREEMENT WOULD BE DIFFERENT WITHOUT SUCH LIMITATIONS.
6. INDEMNITY
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   1. Indemnification of Salesmsg. Customer shall indemnify, hold harmless and defend  (a) defend Salesmsg, its Affiliates, and their respective officers, directors and employees (individually, a “Salesmsg Indemnitee,” and collectively, “Salesmsg Indemnitees”), from and against all loss or damage, costs and expenses incurred by Salesmsg as a result of any claims related to or arising out of or against any Permitted Salesmsg Indemnitee Claim, and (b) pay the amount, including reasonable attorney fees (i) awarded to any such Third Party in any final judgment against any Salesmsg Indemnitee based on any Permitted Salesmsg Indemnitee Claim, or (ii) set forth in any written and executed settlement in full of any and all Permitted Salesmsg Indemnitee Claims of such Third Party. As used herein, “Permitted Salesmsg Indemnitee Claim” means any Third Party claim asserted against any Salesmsg Indemnitee that (1) arises from Customer’s material breach of the Agreement, (2) arises from Customer’s breach of any agreement with end users or Customer customers receiving services from Customer, (3) arises from or related to any Content that is reasonably within the Customer’s control, (4) a Customer Application, including, without limitation, any claims that a Customer Application, or Customer´s or Customer´s End Users’ use of a Customer Application, infringes or misappropriation such third party’s intellectual property rights (collectively, “Customer Indemnifiable Claims”). Customer will indemnify Salesmsg from any fines, penalties, damages, attorneys’ fees, and costs awarded against a SalesMessage Indemnified Party or for settlement amounts that Customer approves for a Customer Indemnifiable Claim, (5) Customer´s content.
   2. Procedure. The foregoing obligations are conditioned on Salesmsg promptly notifying Customer in writing of such action, giving Customer sole control of the defense and settlement of the claims against Salesmsg (except that Customer may not settle any claim against Salesmsg unless it unconditionally releases Salesmsg from all liability) and at Customer’s reasonable request and expense, assisting Customer in such defense.
7. TERM AND TERMINATION
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   1. Term. The initial subscription term of this Agreement will be for a period of one year unless the Agreement is earlier terminated in accordance with this Section 7. The term will automatically renew for successive one-year periods.
   2. Termination for Breach. Either Party may terminate this Agreement based on a default of the other Party, provided the Party gives at least thirty (30) days’ written notice to the defaulting Party, specifically identifying the default on which such notice is based. The defaulting Party will have a right to cure such default within thirty (30) days of receipt of such notice, and this Agreement will terminate only in the event that such cure is not made within such thirty (30) day period. As used herein, the term “default” means (a) the breach  by  a  Party  of  any  material  obligations  under  this  Agreement  (including,  without  limitation,  any payment  obligations  of  Customer  to  Salesmsg),  (b)  a  Party’s  insolvency,  assignment  for  the  benefit  of creditors, appointment or sufferance of appointment of a trustee, receiver, or similar officer; or (c) any voluntary or involuntary proceeding seeking reorganization, rehabilitation, liquidation, or similar relief under bankruptcy, insolvency, or similar debtor- relief statutes.
   3. Termination for Convenience.  Upon termination of this Agreement by the Customer before its scheduled expiration and absent a material breach by the Company, the Customer shall (i) not be entitled to any refunds upon cancellation and (ii) be obligated to remit immediate payment for the remaining term. This sum shall be the total outstanding fees outlined in the Order Form, prorated to reflect the unused portion of the contract period.
   4. Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give thirty (30) days written notice of non-renewal.
   5. Survival. The provisions of Sections 1, 3, (to the extent of accrued and outstanding unpaid fees), 4, 5, 6, and 8 will survive the termination or expiration of this Agreement.
8. MISCELLANEOUS
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   1. Independent  Contractors;  No  Third-Party  Beneficiaries.  In  making  and  performing  this Agreement, Salesmsg and Customer act and will act at all times as independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership, or employer and employee relationship between them. Neither Party shall have the power by virtue of this Agreement to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement is entered into solely between the Parties and may only be enforced by a Party against the other Party.
   2. Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of courier, by certified U.S. mail, postage prepaid and return receipt requested, by a nationally recognized express mail service to a Party at the addresses listed below, or by electronic mail. Notice will be effective upon receipt or refusal of delivery. Each party may change its address for receipt of notice by giving notice of such change to the other party.
      
      If to Salesmsg:
      
      SalesMessage, Inc
      1045 E Atlantic Ave #202
      Delray Beach, FL 33483
      Phone: 888-409-2298
      
      With a copy to: support@salesmessage.com‍
   3. Assignment. Except with respect to an assignment between Salesmsg and any of its Affiliates, neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld, except pursuant  to  a  merger,  acquisition,  or  sale  of  all  or  substantially  all  of  such  Party’s  assets,  in  which  case assignment shall be permitted without the consent of the other Party, provided that notwithstanding the foregoing no fees or pricing in this Agreement relating to any Messaging Services may be assigned by Customer, except to an Affiliate of Customer, without Salesmsg’s prior written consent, which shall not be unreasonably withheld. Except as permitted by the foregoing, any attempted assignment will be null, void, and of no effect. In the event of permitted assignment of this Agreement, all terms and conditions hereof, except for any pricing or other fees in the Agreement in the case of an assignment by Customer, will be binding on and inure to the assignee as though such assignee were an original Party hereto.
   4. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of  such  party  (a  “Force  Majeure  Event”),  provided  that  such  party  uses  reasonable  efforts,  under  the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
   5. Publicity. During the Term, neither party will disclose the existence of this Agreement or any of its terms to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party to this Agreement.
   6. Intellectual Property. The Parties retain all rights, title, and interest in and to their respective intellectual property and nothing in this Agreement, or the performance of a Party’s obligations hereunder, shall, or be construed to, operate as, or to cause, any conveyance, license, or other transfer of a Party’s intellectual property rights to the other Party or any Third Party.
   7. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Florida, U.S.A. without regard to, or application of, any choice of law or conflicts of law rules thereof. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. This Agreement is prepared and executed in the English language only and any translations of this Agreement into any other language that either Party may prepare shall have no legal or binding effect on the other Party.
   8. Jurisdiction and Venue. The Parties agree that any claims of any kind arising from, or related to, this Agreement shall be commenced exclusively in a state or federal court sitting in the state of Florida, U.S.A and each Party hereby (a) irrevocably submits to the jurisdiction of such courts over it, and (b) waives, and agrees not to assert in any action or proceeding in such courts to the fullest permitted by law any defense or objection that the action or proceeding is brought in an inconvenient forum, that the venue of the action  or  proceeding  is  improper,  or  that  this  Agreement,  or  the  subject  matter  hereof,  or  any  of  the transactions contemplated hereby, may not be enforced in or by such courts. Notwithstanding the foregoing, either Party may commence in any court of competent jurisdiction an action solely for the purpose of obtaining an injunction against the other Party for an alleged violation of Section 4 as set forth more specifically in Section 4.5 hereof.
   9. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Arbitration Agreement carefully. It is part of Customer´s contract with Salesmsg and affects Customer´s rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
      1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Salesmsg that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to Customer and Salesmsg, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
      2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Salesmsg should be pursuant to Section 8.2 (Notices) of this Agreement. After the Notice is received, Customer and Salesmsg may attempt to resolve the claim or dispute informally. If Customer and Salesmsg do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
      3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. The parties agree any such arbitration shall be filed and heard with the Florida chapter of the AAA. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
      4. Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
      5. Time Limits. If Customer or Salesmsg pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
      6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of Customer and Salesmsg, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Customer and Salesmsg.
      7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between Customer and Salesmsg in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, CUSTOMER AND SALESMSG WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
      8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
      9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
      10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
      11. Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
      12. Survival of Agreement. This Arbitration Agreement will survive the termination of Customer´s relationship with Salesmsg.
      13. Small Claims Court. Notwithstanding the foregoing, either Customer or Salesmsg may bring an individual action in small claims court.
      14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
      15. Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party”s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.
      16. Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within the state of, Florida, for such purpose.
   10. Agreement, Modifications, Severability, and Waiver. This Agreement, together with all Exhibits attached hereto, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous, oral or written agreements, discussions, and understandings between the Parties with respect to the subject matter hereof, it being understood that neither Party will be bound by any conditions, inducements, or representations other than as expressly provided for herein. This Agreement may not be amended or modified except in writing duly executed by the Parties. If any provision of this Agreement is invalid or unenforceable for any reason in any court or tribunal of competent jurisdiction, such provision will be construed to have been modified to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering such provision invalid or unenforceable in any other case, circumstance, or jurisdiction or of rendering other provisions of this Agreement invalid or unenforceable whatsoever. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is, or would be, sought and any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
   11. Counterparts. This Agreement may be executed in counterparts, including by electronic transmission, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same Agreement.

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