FOODMEMO SUBSCRIPTION AGREEMENT
PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY CLICKING ON THE "I AGREE" BUTTON, AND/OR EXECUTING AN ORDER FORM INCORPORATING THIS AGREEMENT, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF AND AGREEING TO BE BOUND BY THIS SUBSCRIPTION AGREEMENT.
The Too Good To Go corporate entity (“TGTG” and variously “we”, “us” and “our”) and the subscriber (“Subscriber” and variously “you” and “your”) set forth on the order form to which this Subscription Agreement is attached or any other order form that may be executed pursuant to this Subscription Agreement from time to time (“Order Form”) enter into this Subscription Agreement, including all Order Forms and exhibits incorporated herein by reference between the parties, (“Agreement”) for the Subscription (as defined in Section 1.1 below).
1. TERMS & CONDITIONS
1.1 Defined Terms. This Agreement governs:
(a) the TGTG products, including without restriction FoodMemo, and as further set forth on the Order Form and associated documentation (collectively, the “Application”);
(b) one or more websites or portals configured for or made available (each, a “Site”) to Subscriber or its authorized users including its affiliates and/or franchisees and its or their employees and/or agents (each, a “User”);
(c) the set-up, implementation, and training services related to the Application and/or Sites as specified on the Order Form;
(d) TGTG Data means all information, documents, files, data, text, graphics, software, music, sounds, images, video, messages, tags, literature, materials, and other content on the Application and/or Sites including any related information developed by TGTG accessed, uploaded, posted, emailed, transmitted or otherwise provided through or associated with the Application and/or Sites, whether publicly posted, privately transmitted, or orally communicated, and provided through the Services or generated by use of the Services (except for the Subscriber Data as defined below), and all modifications, adaptations, and arrangements thereof (collectively, “TGTG Data”);
(e) Subscriber Data means any inventory information of Subscriber’s including other related information imported by Subscriber or its Users, which at all times shall remain Subscriber’s Data;
(f) the hosting and provision of the Application, Sites, and TGTG Data to Subscriber and its Users which Subscriber and its Users may access through any various mediums or devices now known or hereinafter developed (the “Services”) and “Subscription” shall mean the Subscriber’s order for the relevant Services set out in an Order Form.
2.1 Delivery. Subject to your performance of your obligations hereunder, TGTG will provide access to the Services set forth on the Order Form, and TGTG shall provide the Services for the duration of its Subscription Period (as defined in Section 5.2 below) to Subscriber for its internal business purpose only, including access by its Users, for their use as an information resource (“Business Purpose”), subject to the restrictions set forth herein.
2.2 Equipment & Resources. TGTG shall not be responsible for any travel, accommodations, equipment, telecommunications, or other expenses required for Subscriber or Users to use or access the Services.
3.1 Responsibility. Except for TGTG’s data privacy obligations in accordance with Section 3.2, Subscriber, and not TGTG, is entirely responsible for all Subscriber Data that it or its Users upload, post, email, transmit or otherwise make available via the Subscription. Accordingly, TGTG does not guarantee the accuracy, integrity, timeliness, completeness or quality of any Subscriber Data. Subscriber agrees that it must evaluate, and bear all risks associated with, the use of or reliance on any Subscriber Data. TGTG does not endorse or make any representations about any Subscriber Data, or any results that may be obtained from using any Subscriber Data. Under no circumstances will TGTG be liable in any way for any Subscriber Data, including any errors or omissions in any Subscriber Data, or any loss or damage of any kind incurred as a result of the use of any Subscriber Data.
3.2 Personal data and privacy. You and we each agree to comply with all applicable data protection and privacy laws and regulations as independent controllers of personal data, including without limitation Regulation (EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation or “GDPR”).
4.1 Payment and Invoices. All sums payable to TGTG are payable in Euros unless otherwise set forth in an Order Form. Upon receipt of an invoice from TGTG, Subscriber shall pay the fees set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, fees for recurring Services, including subsequent Subscription Periods, will be invoiced monthly in arrears, payable within thirty (30) days of receipt, and are non-refundable (except as otherwise set forth herein).
4.2 Trials. If we offer you a trial of some of our Services it will be specified in an Order Form, after the trial period, your access to those Services will end. If you want to continue using those Services after the trial, you’ll need to purchase a subscription.
4.3 Discounts. Any price discounts listed on an Order Form or similar only apply for the Subscription Period specified on it, and TGTG are not obliged to continue offering that discount for successive subscription periods.
4.4 Subscription renewal pricing. If we make any changes to the non-discounted price of your Subscription, we’ll inform you at least 45 days before the applicable date when the new price will take effect. If we have given you a discount to our normal subscription prices, this discount may end when your Subscription renews.
4.5 No refunds or credit. Unless we’ve specifically stated elsewhere in these terms, we will not owe you any refund or credit if you or we terminate your Subscription in accordance with these terms.
4.6 Taxes. Subscriber agrees to pay or reimburse any sales, value-added or other similar taxes (but excluding income taxes or taxes based on the revenue of TGTG) imposed by any governmental, regulatory or taxation authority or applicable law that TGTG must collect based on the Subscription ordered by the Subscriber. The fees listed on an Order Form are exclusive of all such taxes.
4.7 Purchase Orders. Subscriber acknowledges and agrees that for the timely payment of its obligations hereunder either no purchase order is required or it shall issue a purchase order or such similar document to TGTG within fifteen (15) days following execution of each Order Form, provided that Subscriber hereby acknowledges that only the terms and conditions of this Agreement are binding on the parties and govern their relationship, and provided that, as between TGTG and Subscriber, any terms or conditions in such purchase order or other document issued by Subscriber are void and of no force and effect.
4.8 Late Payments. Should the Subscriber fail to make payment as required herein, the Subscriber agrees to pay late payment charges of 1.5% per month or part thereof (or, if less, the maximum interest charge allowed by law) on the unpaid balance from the original due date as well as any reasonable costs of collection (including attorneys’ fees); provided, however, this charge shall not apply to fees disputed in commercial good faith, as long as the undisputed portion of any fees on such invoice has been timely paid. Further, if the Subscriber fails to timely pay all undisputed invoices, then TGTG may suspend all access to the Subscription by the Subscriber and all its Users upon notice to Subscriber.
5. TERM & TERMINATION
5.1 Term. The term of this Agreement shall commence on the date an Order Form is first signed by Subscriber (the “Effective Date”) and shall continue until the expiration or termination (pursuant to Section 5.4) of the Subscription (the “Term”).
5.2 Subscription Period. The Subscription Period shall begin on the Subscription Start Date specified on the Order Form and last for the duration of such period set out in such Order Form. Any Subscription added to this Agreement may be required to end on the same date as the first Subscription (or renewal thereof) under this Agreement so that all Subscriptions will share the same renewal date, and the fees for the Subscription Period of each new Subscription will be pro-rated accordingly.
5.3 Expiration. Unless otherwise stated on the applicable Order Form the Subscription shall automatically renew at the end of the Subscription Period for an additional period equal to the initial Subscription Period unless either party provides written notification to the other of their intent not to renew the Agreement by email to the other party’s contact (as listed in the Order Form) thirty (30) days in advance of the End Date of the Subscription Period (or Renewal Term) or the Agreement is otherwise cancelled as set forth on the Order Form. TGTG agrees to use commercially reasonable efforts to notify Subscriber (including by email to the Contact (as defined in the Order Form) or the billing contact as noted in the most recent Order Form) of such pending automatic renewal within a reasonable time prior to the Subscription End Date of the then current Subscription Period. For Subscription Periods longer than monthly durations, TGTG will notify Subscriber of such pending renewal no less than forty-five (45) days) prior to the Subscription End Date of the then current Subscription Period. Subscriber acknowledges that TGTG shall not be responsible for any Damages (as defined in Section 11.1) that result from Subscriber’s failure to timely renew the Subscription as set forth herein.
5.4 Termination for Cause. In the event of any alleged material breach of this Agreement, the party claiming the breach must give written notice thereof to the other party with reasonable specificity of the claimed breach. The other party shall have thirty (30) days (or ten (10) days if the breach is of Section 4 (Fees), and/or Section 6 (Confidential Information and Intellectual Property) from receipt of the written notice to cure any breach. If the breach remains uncured after such period, the party claiming such breach may terminate this Agreement for cause.
5.5 Effect of Termination. Upon termination for any reason, (i) Subscriber and its Users shall immediately cease to access or use any and all parts of the Subscription; (ii) each party must return any property belonging to the other party that is in its possession or control, and (iii) all rights granted hereunder to Subscriber or its Users shall cease.
5.6 Survival. The provisions of Sections 1, 4, 5, 6, 10, 11, and 12 shall survive any expiration, termination or rescission of this Agreement.
6. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
6.1 Confidential Information. Each party acknowledges that during the performance of this Agreement it will have access to certain non-public information of the other party that is confidential or proprietary and that derives independent value from not being generally known to the public including without restriction technical, financial, operational, and business information (“Confidential Information”). Subscriber’s Confidential Information shall include the Subscriber Data. TGTG’s Confidential Information shall include TGTG Data and the Services (including all portions thereof), and the terms and conditions of this Agreement, including any prices or descriptions in an Order Form. Any ideas, suggestions or feedback related to the Services or improvements, corrections, or modifications of the Services provided by Subscriber to TGTG shall be deemed the Confidential Information of TGTG. TGTG shall be free to use any such information without restriction or remuneration to Subscriber or its User(s).
6.2 Exclusions. Confidential Information shall not include: (i) information previously known to or independently developed by the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, or (iii) information received from a third party under no confidentiality obligation with respect to the Confidential Information.
6.3 Obligations. Receiving party shall cause its Users, employees, agents and subcontractors (as applicable) to use commercially reasonable efforts to maintain the confidentiality of the Confidential Information. Receiving party shall take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to protect Confidential Information.
6.4 Limited Use & Non-Disclosure. Receiving party shall use the Confidential Information solely in connection with this Agreement. Receiving party shall not disclose, directly or indirectly, any Confidential Information to third parties except to receiving party’s and its affiliates’ officers, directors, employees, consultants, and agents on a need-to-know basis, provided such parties have executed appropriate written agreements sufficient to enable it to comply with all the provisions of this Agreement. We may also share your Confidential Information on a similar confidential basis within TGTG corporate group including our parent and its subsidiaries, advisors, auditors and financiers, and any third parties carrying out due diligence on us. Receiving party may also disclose Confidential Information in accordance with judicial or other governmental order, provided receiving party shall give disclosing party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
6.5 The Services. Title to, and all Intellectual Property Rights in, the Services, including TGTG Data (and all complete or partial copies thereof in any medium or form) are retained solely by TGTG. As used herein, “Intellectual Property Rights” shall mean any and all right, title, and interest, including patent applications, patents, copyrights, moral rights, database rights, trademarks, service marks, trade names, or trade secrets, and any and all other intellectual property or proprietary rights recognized or enforceable under any applicable law, rule or regulation, or international treaty. Subject to the terms and conditions of this Agreement, and further subject to any agreements to third party software or services to which Subscriber is given notice, during an applicable Subscription Period, TGTG hereby grants to Subscriber, and Subscriber hereby accepts, a limited, non-exclusive, non-transferable, non-sublicensable right for Subscriber to access and use the Services on an Order Form (in accordance with TGTG’s documentation and any other established standards of proper use) solely for Subscriber’s Business Purpose within the geographic region listed on the applicable Order Form. The above rights shall extend to Subscriber’s employees and authorized agents, as well as, its affiliates and/or franchisees, and their employees and authorized agents, who are designated as Users, provided that Subscriber maintains full responsibility and liability for the acts and omissions of such affiliates, franchise partners, employees and agents. Except as expressly provided herein, neither Subscriber nor its Users shall have any rights with respect to the Services and will not take any action inconsistent with the foregoing acknowledgment.
6.6 Server Information & Analytics. As part of providing the Services Subscriber acknowledges and agrees that TGTG may collect and use benchmarking, transactional or performance information or data provided to or collected by the Subscription or the TGTG servers making available the Subscription, including traffic, traffic patterns, activity, activity patterns, page impressions, field and record counts or types, and similar analytics that may be conducted on the Subscription or any Data on a de-identified basis (collectively, “Server Information”). All Server Information shall be deemed TGTG’s Data and TGTG Confidential Information. For clarity, any analytics produced therefrom shall be anonymous as to Subscriber, its affiliates, and their Users and shall not reasonably be linked back to Subscriber, its affiliates or their Users and shall not contain personal data.
6.7 Subscriber Data. Title to, and all Intellectual Property Rights in, the Subscriber Data (and all complete or partial copies thereof in any medium or form) are retained by Subscriber. During the Term, Subscriber grants TGTG and its agents a non-exclusive, worldwide, royalty-free right to use, copy, modify, make available, display, and adapt Subscriber Data to provide the Services to Subscriber. Except as expressly provided herein, TGTG shall not have any other rights with respect to the Subscriber Data and will not take any action inconsistent with the foregoing acknowledgment.
7.1 TGTG Marks. TGTG, and FoodMemo, and any other names and logos associated with the Services or parts thereof (“TGTG Marks”) are trademarks of TGTG. Other third party product, service and company names, logos or marks mentioned as part of the Subscription are trademarks and/or service marks of their respective owners.
7.2 Use of TGTG Marks. During the applicable Subscription Period, TGTG hereby grants Subscriber the right to use the TGTG Marks applicable to a purchased Subscription for the Business Purpose only in accordance with TGTG’s published guidelines for use of such Marks.
7.3 Subscriber Marks. During the applicable Subscription Period, Subscriber agrees that TGTG may refer to Subscriber as a customer of TGTG and hereby grants TGTG the right to use Subscriber’s trademarks, tradenames, trade symbol, and logos (collectively “Subscriber Marks”) in connection with the marketing and promotion of TGTG, the Services or part thereof (including a specific Service).
8. Compliance and Third Party Sites
8.1 Responsibility for Compliance. Subscriber acknowledges that the Subscriber and not TGTG, shall be solely responsible for (i) compliance with all applicable laws and governmental regulations affecting Subscriber’s business, and (ii) any use Subscriber may make of the Subscription (including any reports produced in connection therewith. As such, TGTG cannot provide to Subscriber, and Subscriber shall not interpret any Services as providing, any legal advice in regards to compliance with any applicable laws and/or regulations.
8.2 Third Party Sites. The Services may contain links to third party websites. Such third party websites are not required for the use of the Services or for Subscriber to fully exercise its rights hereunder. TGTG is not responsible for the accuracy or content of websites of other providers that may have links from the Services. Accordingly, TGTG makes no representation concerning the content of any third party sites to Subscriber or any User, nor can the fact that there is a link on the Services serve as an endorsement of the linked site or any other site (or of the content, products and services referenced therein), and these links are provided only as a convenience. Any reference via the Services to any specific product, process or service by trade name, trademark, service mark, manufacturer or otherwise does not constitute or imply any endorsement, approval, recommendation or certification by TGTG.
9. DISCLAIMER OF WARRANTIES
9.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, (II) NO WARRANTY IS GIVEN THAT THE SERVICES WILL BE UNINTERRUPTED OR FREE OF OMISSIONS, ERRORS OR DEFECTS, OR THAT ALL ERRORS SHALL OR CAN BE CORRECTED, AND (III) TGTG EXPRESSLY DISCLAIM ALL CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, INTERFERENCE FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND/OR NON-INFRINGEMENT. ANY USE OF THE SERVICES ARE AT SUBSCRIBER’S OWN RISK.
9.2 SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES ARE DELIVERED AS SOFTWARE AS A SERVICE WITH MULTIPLE RELEASES PER YEAR. ACCORDINGLY, THE SERVICES MAY BE UPDATED FROM TIME-TO-TIME BY TGTG, AND AS A RESULT OF SUCH UPDATES SPECIFIC FEATURES, FUNCTIONS OR OTHER COMPONENTS OF THE SERVICES MAY BE ADDED, ENHANCED, MODIFIED, IMPROVED, SUBSTITUTED, DISCONTINUED OR OTHERWISE CHANGED AS FURTHER SET FORTH IN THE RELEASE NOTES OF ANY GIVEN VERSION OF THE SERVICES, PROVIDED THAT NO SUCH CHANGE WILL MATERIALLY DIMINISH THE SERVICES OR SUBSCRIBER’S USE THEREOF AS CONTEMPLATED HEREUNDER.
9.3 TGTG DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS OF THE SERVICES, INCLUDING BUGS, TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, (B) THE UNAVAILABILITY OF THE SERVICES OR ANY PORTION THEREOF INCLUDING ANY LOSS OF DATA, (C) SUBSCRIBER’S USE OF THE SERVICES, ACCESSIBLE THEREFROM OR ANY DECISION MADE USING THE SERVICES, (D) UNAUTHORIZED ACCESS TO THE SERVICES, DATA, OR ANY OTHER INFORMATION PROVIDED THEREIN, OR (E) SUBSCRIBER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES, OR THE INFORMATION ACCESSIBLE THEREFROM.
9.4 IF THE EXCLUSIONS SET FORTH IN THIS SECTION ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL IMPLIED WARRANTIES AND CONDITIONS SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO IMPLIED WARRANTIES OR CONDITIONS SHALL APPLY AFTER THAT PERIOD.
10. LIMITATIONS OF LIABILITY
10.1 IN NO EVENT SHALL TGTG, ITS AFFILIATES OR ANY OTHER PARTY BE LIABLE TO SUBSCRIBER OR ANY OF ITS USERS OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA, LOSS OF USE OR CLAIMS OF THIRD PARTIES), ARISING OUT OF OR IN ANY MANNER IN CONNECTION WITH THIS AGREEMENT, THE SUBJECT MATTER HEREOF, AND/OR SUBSCRIBER’S OR ANY USER’S OR ANY OTHER PERSON’S OR ENTITY’S USE OF (OR INABILITY TO USE) THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHERWISE, WHETHER OR NOT TGTG OR ANY SUCH OTHER PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES, OTHER THAN DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.
10.2 TGTG’S AND ITS AFFILIATES, TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY SUBSCRIBER IN THE SUBSCRIPTION PERIOD IN WHICH THE FIRST OF SUCH CLAIMS OCCURRED.
10.3 IN NO EVENT WILL TGTG BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THIS AGREEMENT WITHOUT HAVING FIRST RECEIVED THIRTY (30) DAYS PRIOR WRITTEN NOTICE OF SUCH BREACH, AND AN OPPORTUNITY TO CURE SUCH BREACH WITHIN THE NOTICE PERIOD.
10.4 THE PARTIES INTEND THAT THE FOREGOING LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HOWEVER, IN THE EVENT A JURISDICTION DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SUCH CERTAIN EXCLUSIONS SET FORTH ABOVE DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO EITHER PARTY’S LIABILITY FOR: (A) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) ITS INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (C) A BREACH OF ITS CONFIDENTIALITY OR DATA PROTECTION OBLIGATIONS HEREUNDER.
11.1 Subscriber. Subscriber agrees to defend, indemnify and hold harmless TGTG, its affiliates, and their respective directors, officers, employees, agents, successors, and assignees from and against any and all claims, demands, causes of action, costs, losses, damages, expenses (including reasonable attorneys’ fees) or liabilities (collectively “Damages”) incurred or asserted by any third party arising out of (i) the gross negligence or intentional misconduct of Subscriber or its Users; and/or (ii) use of the Services by Subscriber or Users.
11.2 TGTG. TGTG agrees to defend, indemnify and hold harmless Subscriber, its affiliates, and their respective directors, officers, employees, agents, successors, and assignees from and against any and all Damages incurred from claims by any third party arising out of (i) the gross negligence or intentional misconduct of TGTG; and/or (ii) the Services infringing a third party’s Intellectual Property Rights.
11.3 Exclusions. TGTG’s indemnity obligation shall not extend to any claims (i) arising out of or related to a combination of the Services with hardware or software not provided by TGTG, or (ii) if Subscriber refuses to use the most-current version of the Services. Each party’s indemnity obligation shall not extend to any claims (a) if the indemnified party fails to promptly notify the indemnifying party of the claim, (b) if the indemnified party fails to promptly give the indemnifying party sole control over the defense and settlement of the claim, and/or (c) if the indemnified party fails to promptly provide the indemnifying party reasonable cooperation in such defense or settlement.
11.4 Injunction. In the event of actual or alleged infringement or injunction, TGTG shall have the right at its expense and option, to: (i) procure for Subscriber the right to continue using the Services; (ii) modify or replace the Services with compatible, functionally equivalent, non-infringing component(s); or (iii) terminate this Agreement without any additional liability, and refund to Subscriber any pre-paid (unused) portion of the Subscription fees.
12. GENERAL TERMS
12.1 Relationship of the Parties. Both parties agree that they are independent entities and that nothing in this Agreement shall be construed to create a partnership, joint venture, fiduciary, agency, or affiliate relationship between the parties. Each party is responsible for the supervision, management and direction of its own employees and agents. Each party is responsible for the payment of compensation to its employees and for any injury to them occurring in the course of their employment and neither party shall be responsible for the supervision, management and direction of the employees of the other party..
12.2 Force Majeure. Neither party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any event beyond the reasonable control of such party, including any act of God (i.e., fire, earthquake, natural disaster), act of government (i.e., war, terrorism, embargo), or any other act or circumstance that is beyond the reasonable control of such party, provided that such party gives the other party prompt written notice thereof. In the event the delay or nonperformance continues for a period of at least forty-five (45) days, the party affected by the other’s delay or inability to perform may elect to terminate this Agreement for convenience, at no charge and receive a refund of any pre-paid fees.
12.3 Equitable Relief. Each party acknowledges and agrees that violation of Section 6 (Confidential Information & Intellectual Property) may cause the other party or its affiliates irreparable injury not compensable by money damages alone for which the non-breaching party or affiliates will not have an adequate remedy at law. Accordingly, the non-breaching party may seek injunctive or other equitable relief (without posting a bond) to enforce such provisions or to prevent or curtail any breach thereof, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights either party may have under this Agreement, at law or in equity.
12.4 Notices. All notices, requests and demands, other than invoices and routine communications under this Agreement, shall be transmitted electronically in writing and shall be effective upon receipt. Any notice required to be delivered under this Agreement other than invoices and routine communications shall be delivered via email, in the case of Subscriber, to the email listed in the most recent Order Form, and in the case of TGTG, to firstname.lastname@example.org. Either party may from time to time change the individual(s) to receive notices under this Section and its address for notification purposes by giving the other prior written notice as provided in this Section of the new individual(s) and address and the date upon which the change will become effective.
12.5 Entire Agreement, Amendment & Waiver. This Agreement supersedes in full all prior discussions and agreements (oral or written) between the parties relating to the subject matter herein, and constitutes the entire agreement between the parties relating thereto. TGTG may make changes to this Agreement from time to time by providing you with prior notice before any change takes effect in accordance with local law or regulation. Such change will not apply retrospectively to your use of the Services, but the updated terms will immediately apply to you if you use the Services after the effective date of the updated Agreement terms. If you or any User do not terminate your use of the Services before the date the revised agreement terms become effective, continued access to or use of the Services will constitute acceptance of the revised subscription agreement terms. The failure of either party at any time to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
12.6 Assignment. Neither party may assign any of its rights or obligations under this Agreement (in whole or in part) without prior written permission from the other party, provided that either party may assign this Agreement to an affiliate or successor in interest by merger, acquisition or reorganization. Any purported assignment in violation of this paragraph shall be void and constitute a material breach of this Agreement. In the event of a permitted assignment, the assigning party shall provide written notice to the other party. This Agreement will inure to the benefit of and be binding on the parties, their successors, permitted assigns and legal representatives. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise. In the event Subscriber assigns this Agreement pursuant to this Section, Subscriber will, if required by TGTG, negotiate with TGTG in good faith applicable terms reflective of the size and scale of the assignee and its use of the Services in connection with such assignment.
12.7 Law & Venue. This Agreement shall be governed by, and construed in accordance with, the laws of Denmark. For any disputes arising out of this Agreement, the parties hereby submits to the personal jurisdiction and venue of the city courts of Copenhagen, Denmark.
12.8 Judicial Modification. THE PARTIES INTEND THAT THIS AGREEMENT IS VALID AND SHALL BE ENFORCED AS WRITTEN. The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement or any other provision hereof. In addition, in the event that any provision of this Agreement (or portion thereof) is determined by a court to be unenforceable as drafted, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
12.9 Counterparts. This Agreement may be executed by facsimile or other electronic means, and in one or more counterparts, each of which shall be deemed to be an original, but all of which will together constitute one and the same Agreement. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as drafted in English without regard to any translations, and as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. If any provision in an Order Form conflicts with the terms of this Agreement, the terms of this Agreement will control, unless the provision specifically refers to and expressly overrides the conflicting terms of this Agreement. Unless explicitly specified to the contrary, the word “including” wherever used herein shall be construed to mean “including without limitation”, and “affiliates” shall be construed to mean any entities controlling, controlled by or under common control with a party, whether existing at or after execution of the Agreement.