Wittaya Aqua International Terms of Service
WITTAYA AQUA INTERNATIONAL INC. (“COMPANY” / “WE” / “US”) OWNS AND OPERATES THE AQUAOP SOFTWARE-AS-SERVICE PLATFORMS, INCLUDING AQUAOP FARM AND AQUAOP FEED (COLLECTIVELY THE “PLATFORMS”) AND THE WEBSITE LOCATED AT https://wittaya-aqua.ca/ (THE “WEBSITE”).
1 DEFINITIONS & INTERPRETATION
1.1 In this Agreement the following terms have the following meanings:
(a) “Affiliate” of a party means any corporation or other legal entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
(b) “Business Days” means any day, other than Saturday, Sunday or any statutory or civic holiday observed in Toronto, Ontario;
(c) “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party (including their Affiliates) which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties (or their Affiliates), exercising reasonable business judgment, to be confidential;
(d) “Documentation” means the technical publications prepared and delivered to Licensee with the Platform(s) relating to the installation and operation of the Platform(s) or other Company software products, such as reference, user, installation, systems administrator and technical guides and release notes;
(e) “End User” means an individual authorized by Licensee to use the Platform(s) on behalf of Licensee;
(f) “Licensee” means the party, company, organization, or individual who enters into this Agreement with the Company;
(g) “Order Form” means an executed order form in relation a subscription to the Platform(s) referencing this Agreement;
(h) “Term” has the meaning given in Section 4.1 of this Agreement;
(i) “Training Data” means any data that is used for the training of algorithms, model calibration, running simulations, or other scientific or commercial purposes, provided it is anonymized with the effect that there is no personal information contained in the Training Data and the Training Data does not in any way identify Licensee or End Users or include Licensee Confidential Information and it is not possible to reverse engineer such data to determine Licensee’s Confidential Information or that such data relates to Licensee.
2 LICENSE TERMS
2.1 AquaOp Farm Disclaimer. The services being provided to Licensee and the information on the AquaOp Farm Platform is for information purposes only and does not constitute farming or professional advice. Company will not be liable to Licensee for any losses or damages, including loss of profits, animal loss or any other losses resulting from Licensee’s use of the AquaOp Farm Platform. LICENSEE ASSUMES ALL RISKS IN RESPECT TO ITS USE OF THE PLATFORM AND ANY DECISIONS MADE BASED ON INFORMATION, ANALYSIS OR RECOMMENDATIONS OF THE PLATFORM.
2.2 AquaOp Feed Disclaimer. The services being provided to Licensee and the information on the AquaOp Feed Platform is for information purposes only and does not constitute farming or professional advice. The research and data presented on the AquaOp Feed Platform is derived from third-party sources and Company cannot guarantee that such data is accurate, complete or up to date. Company will not be liable to Licensee for any losses or damages, including loss of profits, animal loss or any other losses resulting from Licensee’s use of the AquaOp Feed Platform. LICENSEE ASSUMES ALL RISKS IN RESPECT TO ITS USE OF THE PLATFORM AND ANY DECISIONS MADE BASED ON INFORMATION, ANALYSIS OR RECOMMENDATIONS OF THE PLATFORM.
2.3 License Grant: The license granted under this section entitles Licensee to a non-exclusive, non-transferable, worldwide, non-sublicensable license to access and use the Platform(s) identified on the Order Form beginning on the Platform Access Date (as defined below) and continuing for the Term for Licensee’s internal business purposes and in accordance with any volume limits or other restrictions set out in the Order Form or otherwise communicated by Company to Licensee.
2.4 Evaluation License Grant. If Licensee uses the free version of a Platform, then, subject to these Terms, Company grants Licensee a limited, personal, non-transferable, non-sub-licensable, internal license to use the applicable Platform for an indefinite period of time, unless cancelled sooner by the Company in its sole discretion. For the purposes of these Terms, “Free Period” means the time starting from Licensee’s registration to use a free version of the applicable Platform until the start date of any paid subscription for the Platform ordered by Licensee, unless cancelled sooner by the Company in its sole discretion. Licensee will not be entitled to receive any support from Company for the free subscription for the Platform(s). Company may terminate the Free Period for any free version of the Platform(s) at any time in Company’s sole discretion and may accept or decline any request for a free version of the Platform(s) in Company’s sole discretion. NOTWITHSTANDING ANY OTHER PROVISIONS IN THESE TERMS, ACCESS TO THE FREE VERSION OF THE PLATFORM(S) IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. Additional terms and conditions applicable to the free version of the Platform(s) may appear on the applicable registration page. Any such additional terms and conditions are incorporated into these Terms by reference.
2.5 License Restrictions. Licensee acknowledges and agrees that Company and its licensors shall retain all right, title, and interest (including all Intellectual Property rights) in, to, and under the Platforms. Licensee also agrees that it shall not:
- rent, lease, sell, resell, assign, loan, or otherwise transfer the Platform(s) or any of Licensee’s rights and obligations under this Agreement or otherwise provide to any third party any portion of the Platform(s) or Confidential Information or know-how, except as explicitly permitted herein;
- modify, translate, create derivative works, adapt, merge, reverse engineer, disassemble, decompile or in any other manner attempt to decode the Platform(s) (except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary); if the foregoing provision is prohibited by applicable law, Licensee will provide Company with advance written notification of (i) its intention to decompile, disassemble or otherwise reverse engineer the Platform(s), and (ii) the nature of the work involved;
- access or use the Platform(s) in order to (i) build a competitive product or service or any form of derivative works based on the Platform(s), or (ii) copy any ideas, features, functions or graphics of the Platform(s); or
- remove or destroy any copyright notices or other proprietary markings contained on or in the Platform(s).
3 PROPRIETARY RIGHTS AND CONFIDENTIALITY
3.1 Reservation of Rights. Licensee acknowledges that the Platforms (and any information incorporated therein or provided in respect thereto) and any technology therein constitutes Confidential Information, contains trade secrets and is subject to copyright, patent and other intellectual property rights belonging to Company and its licensors. Licensee acknowledges and agrees that title in and rights to the Platforms and Training Data and Statistical Data, including all related intellectual property rights, remains exclusively with Company and its licensors. Licensee’s rights to the Platforms are limited to those expressly granted in this Agreement and the specific Order Form, and no other rights are granted to Licensee.
3.2 Work Product. All right, title and interest in and to any developments, customizations, enhancements, or modifications made to Platforms (including the Platforms) (“Work Product”) will vest in and belong to Company exclusively unless otherwise expressly stated in a Purchase Order. Any upgrades, updates or other Work Product will be licensed to Licensee on a non-exclusive, non-transferable, royalty-free worldwide basis to be used to the extent required to exercise the licenses granted in Section 2 and 3 of this Agreement.
3.3 Licensee Data. As between Licensee and Company, Licensee owns and retains ownership of all data uploaded to the Platform(s) by or on behalf of Licensee (“Licensee Data”). Licensee hereby grants Company a limited, worldwide, royalty-free, and non-exclusive license to use, collect, store, access, process, distribute and transmit Licensee Data during the Term to: (a) provide the Platform(s) in accordance with the terms of this Agreement, (b) create Training Data, and (c) create marketing data. Company shall make available to Licensee for export the Licensee Data during the Term and for a period of 30 days thereafter. If Licensee subscribes to the AquaOP Feed Platform, Licensee agrees that Company owns and retains ownership of all product and pricing data, including feed ingredients and nutrients, feed commodity prices, generated from Licensee’s use of the AquaOP Feed Platform, (“Feed Data”), provided such data are anonymized with the effect that there is no personal information contained in the Feed Data and the Feed Data does not in any way identify Licensee or End Users or include Licensee Confidential Information and it is not possible to reverse engineer such data to determine Licensee’s Confidential Information or that such data relates to Licensee. Company hereby grants Licensee a limited, worldwide, royalty-free, and non-exclusive license to access, use, store and process any Feed Data to use the AquaOP Feed Platform during the Term.
3.4 Analytics. Licensee acknowledges and agrees that Company compiles and analyzes Licensee Data to create useful, aggregated information about licensee service delivery and performance and accordingly Company requires the right to generate data about the use and operation of the Platform(s), from reports generated pursuant to this Agreement and raw Licensee Data (“Statistical Data”). Licensee hereby grants Company a perpetual, worldwide, non-exclusive, royalty-free license to create Statistical Data from Licensee Data and combine it in whole or in part with data derived from using the Platform(s) and with other data at Company’s discretion. For the avoidance of doubt, Statistical Data will not include any raw Licensee Data, including any personal information, and will not be distributed in a manner which identifies Licensee. Company shall have exclusive ownership of any Statistical Data and the exclusive right to use the same for any purpose without restriction.
3.5 Suggestions. Company shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Licensee or its end users relating to the operation of the Platform(s), provided such feedback does not include any Confidential Information or Licensee Data.
3.6 Protection of Confidential Information. Each party shall maintain in confidence all Confidential Information of the other party and shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each party shall treat Confidential Information of the other party with the same degree of care against disclosure or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Each party shall be entitled to provide Confidential Information to contractors of that party that have agreed to confidentiality obligations at least as protective as those contained herein. The obligations of confidence set forth in this Agreement shall extend to any Affiliates that have received Confidential Information and shall also cover Confidential Information disclosed by any Affiliate.
3.7 Exemptions. Neither party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which: (a) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (b) was lawfully generally publicly known prior to its disclosure, or becomes generally publicly known other than through a breach of this Agreement; (c) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (d) is independently designed and developed by the receiving party without any violation of any Intellectual Property or other rights of the other party.
3.8 Compelled Disclosure. If a receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall use reasonable efforts to (a) seek confidential treatment for such Confidential Information, and (b) provide prior written notice to the disclosing party to allow the disclosing party to seek protective or other court orders.
4 FEES AND PAYMENT
4.1 Fees. Licensee shall pay Company the applicable fees set out in the Order Form (the “Fees”) executed by the parties. Unless otherwise specified in the Order Form, all amounts are payable in US Dollars.
4.2 Invoicing and Payment. Unless otherwise specified in the Order Form, Fees will be invoiced monthly. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Licensee is responsible for maintaining complete and accurate billing and contact information with Company.
4.3 Pre-authorized Payment. By providing a credit card to Company for pre-authorized payments, Licensee authorizes Company to charge the Licensee credit card or debit account for all outstanding Fees, Taxes, charges, and outstanding account balances due and this constitutes Company’s good and sufficient authority for so doing. If Licensee’s pre-authorized payment method fails, Company will provide notification to Licensee of payment failure. Licensee shall: (a) keep the billing, credit card and payment information Licensee provides to Company or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, e-mail address and telephone number, accurate and up to date; (b) promptly advise Company if Licensee’s credit card information changes due to loss, theft, cancellation or otherwise; and (c) be liable for Licensee failure to pay any Fees billed to Licensee by Company caused by Licensee’s failure to provide Company with up to date billing information.
4.4 Overdue Payments. Any payment not received from Licensee by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Company's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.5 Taxes. Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Licensee is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Company's net income or property. If Company has the legal obligation to pay or collect Taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.6 Suspension of Service. If Licensee's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Company reserves the right to suspend the Platform(s) provided to Licensee, without liability to Licensee, until such amounts are paid in full.
5 TERM AND TERMINATION.
5.1 Term. This Agreement shall commence upon the earlier of (a) Licensee’s first access to the applicable Platform; or (b) one month following execution of this Agreement (the “Platform Access Date”) and shall continue indefinitely until this Agreement is terminated in accordance with Section 2.3 or 5.2 (the “Term”).
5.2 Termination. Licensee is free to stop using the Platform(s) at any time. Company reserves the right to terminate Licensee’s access to the Platform(s) by providing notice to Licensee if (a) Licensee is in material breach of this Agreement; (b) Licensee uses the Platform(s) in a manner that would cause a real risk of loss or harm to Company or other users of the Platform(s); or (c) at any time for any reason if Licensee is using a free version of the Platform(s). Company reserves the right to terminate or suspend Licensee’s access to the Platform(s) without notice where (i) Licensee is in material breach of this Agreement; (ii) providing notice to Licensee would cause Company legal liability or compromise Company’s ability to provide the Platform(s) to its other users; or (iii) where the law prohibits Company from providing notice. Furthermore, either of the Parties may terminate this Agreement in the event the other party makes an assignment for the benefit of creditors, files a voluntary bankruptcy petition, acquiesces to any involuntary bankruptcy petition, is adjudicated bankrupt, or ceases to do business. This Agreement shall automatically terminate upon the Effective date of any Subscription Agreement entered into between Licensee and Company.
5.3 Effect of Termination. Upon the termination of this Agreement, all rights or licenses granted hereunder to Licensee will terminate. Licensee and its permitted users must cease all use of the Platform(s) and Licensee shall uninstall any instances of the Platform(s) from its systems and destroy or return any Documentation or other Confidential Information in Licensee’s possession or control.
5.4 Survival. The provisions of Sections 1, 2.1, 2.2, 2.6, 3, 4, 5, 6, 7 and 8 shall survive termination or expiration of this Agreement.
6 WARRANTIES AND DISCLAIMERS.
6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) it has full power and authority to enter into this Agreement, and to perform its obligations under this Agreement; (b) this Agreement has been duly authorized, executed and delivered by the party and constitutes a legally enforceable agreement of the party; and (c) this Agreement is not limited or restricted by, and is not in conflict with, any commercial arrangements, obligations, contract, agreement or other instrument to which the representing party is either bound or subject.
6.2 DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PLATFORM(S), DOCUMENTATION AND SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHTABLE QUALITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM(S) OR DOCUMENTATION SHALL MEET ANY OR ALL OF LICENSEE’S OR ITS LICENSEES’ PARTICULAR REQUIREMENTS, THAT THE PLATFORM(S) WILL OPERATE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE PLATFORM(S) CAN BE FOUND OR CORRECTED.
7 INDEMNIFICATION AND LIMITATION OF LIABILITY.
7.1 Licensee Indemnification. Licensee agree to indemnify, defend and hold harmless Company, its shareholders, members, principals, partners, owners, transferees, directors, managers, officers, employees, servants, successors, agents, attorneys, distributors, vendors, suppliers and representatives (collectively, the “Company Parties”) from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees) arising from: (a) Licensee’s use of and access to the Platform(s); and (b) Licensee’s violation of any of the terms of this Agreement.
7.2 LICENSEE WAIVER, RELEASE, AND DISCHARGE. LICENSEE HEREBY WAIVES, RELEASES, AND IRREVOCABLY DISCHARGES the Company Parties from any and all actions, causes of action, liabilities, suits, debts, obligations, dues, accounts, bonds, covenants, contracts, claims, demands, indemnities, losses, costs (including professional fees), damages and proceedings whatsoever, whether in law or in equity, which Licensee has ever had or may hereafter have, whether known or unknown, including but not limited to, liability arising from any acts or omissions of any kind, misconduct, negligence or fault of the Licensee Parties or of a third party, which cause any death, disability, personal injury, or property damage to Licensee or a third party during Licensee’s use of the Platform(s).
7.3 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION (INCLUDING FUNDAMENTAL BREACH, TORT, NEGLIGENCE, MISREPRESENTATION, OR OTHER CONTRACTUAL OR TORT CLAIM), EXCEED THE GREATER OF CDN$500.00 OR THE TOTAL PAYMENTS MADE BY LICENSEE TO COMPANY WITHIN THE TWELVE (12) MONTHS PRECEDING A CLAIM.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER COMPANY NOR ANY OF COMPANYS SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
8 GENERAL PROVISIONS
8.1 Publicity. During the Term, upon written consent of the Licensee, Company may disclose that Licensee is a customer of Company on its website and other similar promotional materials.
8.2 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, Licensee, joint venturers, or legal representative of the other for any purpose and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
8.3 Force Majeure. Except for payment obligations, neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes (each a “Force Majeure Event”), provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
8.4 Subcontractors. Company may subcontract the performance of any professional services or obligations under this Agreement without the prior written consent of Licensee provided that Company shall remain responsible for the acts or omissions of its subcontractors performing duties on its behalf under this Agreement.
8.5 Notices. If any notice or other communication is required or permitted to be given to Company hereunder, such notice or communication shall be in by email to: email@example.com. Except for notices given under Section 8.15, all notices to Licensee shall be sent to the email address provided by Licensee to access the Platform(s) or that associated with Licensee’s Platform(s) account.
8.6 No Waiver. No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term set out in this Agreement constitutes consent to any subsequent breach, whether of the same or any other provision.
8.7 Rights and Remedies. There are no third-party beneficiaries to this Agreement. Except as specifically provided in this Agreement, the rights and remedies provided herein and all other rights and remedies available to either party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.
8.8 Severability. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
8.9 Assignment. Neither party may assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the other party, except that Company may assign this Agreement to any party that acquires all or substantially all of its related business by merger, sale of stock or assets, or otherwise or to an Affiliate of Company. Subject to the foregoing limits on assignment, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
8.10 Export. The Platform(s) and related information may be subject to export and import controls under the regulations of Canada and other countries, and Licensee shall comply with all export and import control regulations, as applicable. Licensee shall not use the Platform(s) for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Licensee shall be responsible for procuring all required permissions for any subsequent export, import or use of the Platform(s).
8.11 Governing Law and Venue. This Agreement is governed by the laws of the Province of Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. The courts of Toronto, Ontario will have exclusive jurisdiction to resolve any dispute arising under this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
8.12 Interpretation. Any agreement or schedule referred to herein means such agreement or schedule as amended, supplemented, and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement. References to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules, and appendices will be references to recitals, articles, sections, paragraphs, schedules, and appendices of this Agreement. The parties agree that this Agreement will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities will not be interpreted against the party that drafted the relevant language. If there is any conflict or inconsistency between the terms in the various parts of this Agreement, the sections in the schedules shall prevail over those in the body of the Agreement.
8.13 Entire Agreement. This Agreement, including any Order Form and schedules incorporated by reference into this Agreement and/or executed by both parties, constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications, and understandings of any nature whatsoever, oral or written. No preprinted terms or conditions of any purchase order submitted by Licensee to Company shall be of any contractual effect between the parties. This Agreement may not be modified or waived orally and may only be modified in a writing signed by duly authorized representatives of each party.
8.14 Counterparts; Facsimile Signatures. The parties agree to accept faxed signatures as valid and binding in the execution of this Agreement. This Agreement may be executed in counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
8.15 Modifications. Company reserves the right, at its own discretion, to change, modify, add or remove all or any portion of these Terms at any time. Company shall provide notice of such change by posting the effective date in the top portion of these Terms. Licensee’s continued use of the Platform(s) following any change to these Terms shall constitute Licensee’s acceptance of such change.
8.16 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglaise.