Terms of Service
Last updated: September 30, 2019
The Big Picture
PICnet Inc (“PICnet” or “we” or “us”) is a California corporation that provides an online service called Soapbox Engage. We’d be excited for you to use it. Our service is designed to help organizations communicate more effectively online with their constituencies. It’s important for you to take the time to understand the terms by which you use the service. Please read this document carefully and thoroughly before using our service.
Terms of Service
This agreement is between PICnet and you. The following terms and conditions govern your use of the SoapboxEngage.com website or the NonprofitSoapbox.com website, including any subdomains thereof (collectively, “Website”). The Website utilizes the Soapbox Engage service, which includes all content, services and products available at or through the Website (collectively, “Service”). The Service is offered subject to your acceptance of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, PICnet’s Privacy Policy) and procedures that may be published and updated periodically without prior notice on the Website by PICnet (collectively, the “Agreement” or “Terms of Service”).
IF YOU DO NOT AGREE TO THE TERMS OF SERVICE LISTED HERE, DO NOT USE OUR SERVICE.
Please read this Agreement carefully before accessing the Website or using the Service. By accessing or using any part of the Website or Service, you agree to be bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then do not access the Website or the Service.
I. Intellectual Property
This Agreement does not transfer from PICnet to you any PICnet or third party intellectual property. All right, title and interest in and to such property shall remain (as between the parties) solely with PICnet. All trademarks (whether registered or not), service marks, graphics and logos, copyrights, patents (whether published or not), or other intellectual property rights used in connection with the Website or the Service, including but not limited to PICnet, Soapbox Engage, SoapboxEngage.com, and the Soapbox Engage logo, are the exclusive intellectual property rights of PICnet or third parties, such as PICnet’s licensors. Your use of the Website or the Service grants you no right or license to reproduce or otherwise use any such intellectual property rights except as may expressly be permitted herein in these Terms of Service.
II. License
Pursuant to this Agreement, we grant to you a limited, non-exclusive, non-assignable, non-transferable, revocable license to use our Service only for your personal use in conjunction with your use of the Website. “Personal use” shall mean your use (if an individual) or your organization’s use (if an entity). Your right to use our Website or Services is limited by all terms and conditions set forth in these Terms of Service.
You agree that by using the Website or Service that you will not: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse-engineer or create derivative works of our Website or Service or any components thereof; or (ii) circumvent or disable any security or technological features or similar measures of our Website or Service.
III. Your Soapbox Engage Account
If you use the Website or the Service, you will have the opportunity to sign up for an unique login and password (“Account”). You are responsible for maintaining the security of your Account, and you are solely responsible for all activities that occur under the Account and any other actions or omissions taken in connection with the Account. You must not describe or assign keywords to your account pages in a misleading, salacious or unlawful manner, including in a manner intended to trade on the name or reputation of others, and PICnet reserves the exclusive right, without liability to you, to change or remove any description or keyword that it considers inappropriate or unlawful or that is or may be, in PICnet’s sole discretion, contrary to these Terms of Use. You agree to immediately notify PICnet of any unauthorized access to your Account or any other breach or perceived breach of security that may affect your Account or the Website or the Service. PICnet expressly disclaims any liability arising from any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
IV. Scope of Services
Unless otherwise specified in this Agreement, no installation, configuration, training, Professional Service, or any other service is included within the scope of these Terms of Service. The term “Professional Service” shall mean a separate request with PICnet through a Work Order (as described in greater detail below) for additional services beyond those offered in the Terms of Service for an additional fee. The process for placing a Work Order is described in greater detail, below (in the section on Professional Services).
V. Trial Services
If you register and are approved for a trial of an application (“App”), we will make the applicable App available to you on a trial basis free-of-charge until the earlier of the end of the free trial period (if not earlier terminated by us in our sole discretion) or the start date of your paid subscription. If we include additional terms and conditions on the trial registration web page, such terms and conditions shall apply as well. Unless you purchase a subscription to the applicable App before the end of the free trial, you agree and understand that all of your data on the Website or within the Service may be permanently deleted at the end of the trial and that we shall have no obligation to (and likely will not be able to) recover such data.
VI. Fees and Payments
Use of our Website or Services is subject to the fees listed on our Website, such as at www.soapboxengage.com/pricing (“Pricing Page”). Fees are based on the particular App (or Professional Service, as described in more detail below) to be provided and are non-refundable. The first month of Service for each App ordered is prorated based on the number of calendar days remaining in the month that the selected App was ordered. The fee for each subsequent month used is charged for the full month on the first day of that month according to the then-current fees listed on our Website (with no refund for any partially-used portion of that month in the event of future cancellation). Unless you notify us that you wish to cancel your order for the particular App, your credit card will be charged automatically each month. Again, you must cancel use of the Service prior to the first day of the next calendar month in order to avoid additional fees.
Fees for our Apps (or any subscription to Professional Services, as described in greater detail below) will be billed to your credit card and you authorize (i) PICnet (or our billing agent) to charge your credit card account until you or We cancel or terminate your ordered App(s) (or Professional Service) and (ii) the card issuer to pay any amounts set forth herein. If for any reason payment is not received from your credit card issuer, you agree to pay all amounts due within five (5) calendar days of notice from us. You agree to provide current, complete and accurate billing and credit card information and to update such information timely whenever needed. You agree to pay all costs and fees associated with collecting any outstanding amounts owed, including reasonable attorneys' fees and costs. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges. You agree that you remain solely responsible for any such charge.
You will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges, if any, and any related penalties or interest that may be assessed by any governmental entity or other third party for the right to access the Website and Service, including the Apps (or Professional Service). You agree to make all required payments to PICnet free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to PICnet remain your sole responsibility. If requested by PICnet, in order for PICnet to respond to a governmental request or order of a court or other tribunal for such information, you agree to provide PICnet with official receipts issued by appropriate taxing authorities, or such other evidence as PICnet may reasonably request, to establish that such taxes have been paid.
VII. Support Services
To help meet the needs of our community, we provide support services to paying subscribers of any of our Apps. Regardless of your need, getting help of any kind always starts with opening a support ticket on our Website, such as at our support portal at http://support.picnet.net. We do not provide support for requests initiated by phone; however, we do provide phone support services as a separate service not included here (as described in greater detail below regarding our Professional Services). We attempt to respond to support requests within 48 hours (in practice, responses are often faster), though solutions may take longer to achieve. We do not promise or guarantee any specific response time.
VIII. Professional Services
You may purchase Professional Services through a Work Order. This starts with a request for Professional Services, which is done by submitting a ticket on the Website (such as in the support portal at http://support.picnet.net). PICnet reserves the right to accept, modify or reject any Professional Services request. Typically your request is reviewed and an estimate is provided by PICnet. If you approve the estimate, a proposed Work Order is created by PICnet (either within the ticket or separately). If you approve the proposed Work Order (either within the ticket or separately), you are agreeing to the terms of the Work Order (this process ensures that both of us agree to the terms of each Work Order and that there is no confusion regarding the Professional Services to be provided and fee owed by you to us). Upon your approval, the Work Order becomes a binding agreement between us wherein we provide you the services at the fee indicated in the Work Order.
Unless otherwise described in a Work Order, the Professional Services we provide are described on the Website, such as at https://www.soapboxengage.com or another URL as we may designate from time-to-time. Professional Services fees are in addition to any App fees. Professional Services are performed remotely, unless otherwise agreed in the Work Order. If there are a specific number of hours included in the Professional Services purchased, those hours will expire as indicated in the Work Order or the description provided on our Website for such Professional Service. The terms of a Work Order control in the event of a conflict or inconsistency between a Work Order and our then-current Terms of Service. Work Orders for Professional Services are non-refundable and may not be cancelled once placed.
IX. Add-On Services
In conjunction with any of the Apps purchased, you may also include additional Add-On Services as listed on our Website, such as at the pricing page at https://www.soapboxengage.com. These Add-On services will have the same billing cycles as your Apps.
X. Responsibility of Website Visitors
PICnet has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. If you believe that your work has been copied on or using our network or website in a manner that constitutes copyright infringement, you must provide our copyright agent, designated here, with certain information. By operating the Website, PICnet does not represent or imply that it endorses material that may be posted on the Website by you or those other than PICnet, or that it believes such material to be accurate, useful or non-harmful. You agree that you will accept the Website or Services “As Is” and that it may contain offensive material. You are responsible for taking precautions as necessary to protect yourself and your computer systems from, among other things, viruses, worms, Trojan horses, and other harmful or destructive content. You acknowledge that the Website or Service may contain content with technical inaccuracies, typographical mistakes, and other errors. . PICnet disclaims any responsibility for any harm resulting from the use by visitors of the Website or Service, or from any downloading by those visitors of content that may be posted there.
XI. Content Posted on Other Websites
PICnet has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Website and Service links, and that link to the Website and Service. PICnet does not have any control over such non-PICnet websites or services, and is not responsible for their contents or their use. By linking to a non-PICnet website, PICnet does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from, among other things, viruses, worms, Trojan horses, and other harmful or destructive content, and all of the precautions noted above (regarding Responsibility of Website Visitors) apply equally here. In short, PICnet disclaims any responsibility for any harm or offense that may result from your use or link to a non-PICnet website.
XII. Attribution
PICnet reserves the right to display attribution links such as “Powered by Soapbox Engage” in the footer of pages you use from our Website or Service.
XIII. Changes to These Terms of Service
We are constantly updating our Website and Service, and that means that sometimes we have to change the legal terms under which our services are offered. When we do, we will revise the “last updated” date given above. You agree that it is your responsibility to review these Terms of Services frequently and to remain informed of any changes to them. The then-current version of these Terms of Service will supersede all earlier versions. If you disagree with any changes to these Terms of Service or the current version, you should stop using our Service. Your continued use of our Service will be subject to the new Terms of Service. However, any dispute that arose before any such changes shall be governed by the Terms of Service (including the binding arbitration clause as described in greater detail below) that were in place when the dispute arose.
XIV. Termination
PICnet may terminate your access to all or any part of the Website or Service at any time and for any reason, with or without cause, with or without notice, effective immediately. If PICnet terminates your Account without cause, you may be entitled to a partial refund for fees assessed for any App (or Professional Services), in PICnet’s sole discretion. Should you wish to terminate this Agreement or your Account, you must submit your termination via a support ticket, which is available on the Website (such as at http://support.picnet.net).
Upon termination of this Agreement, you agree to stop all use of the Website or the Service. If we terminate this Agreement for cause, or if you terminate this Agreement, you will remain responsible for paying all fees (and any not outstanding amounts owed, if any, shall become immediately payable and due). After your request for termination, we will have no obligation to maintain or safeguard your data, and expressly disclaim any liability associated with same, and you agree that we may delete any or all of your data in our systems or otherwise subject to our custody and control. It is your sole responsibility to backup or download your own personal data related to your use of the Website or Service before termination of this Agreement (subject, again, to these Terms of Service, including but not limited to the above Intellectual Property and License provisions).
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, intellectual property, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
XV. Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS”. PICNET AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PARTIES AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM ("UCITA"), SHALL NOT APPLY TO THIS AGREEMENT. TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN. Neither PICnet nor its suppliers and licensors, makes any warranty that the Website or Service will be error free or that access thereto will be continuous or uninterrupted or free from any malicious third-party malware. You understand that you download from, or otherwise obtain content or services through, the Website or Service at your own discretion and risk.
XVI. Limitation of Liability
IN NO EVENT SHALL PICNET BE LIABLE FOR SPECIAL (INCLUDING PUNITIVE), CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF USE, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR GOODWILL EVEN IF PICNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF PICNET TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PICNET BY YOU UNDER THIS AGREEMENT IN THE LAST TWELVE (12) MONTHS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION BETWEEN THE PARTIES IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS. THE FEES AND PAYMENTS, (INCLUDING APP FEES AND PROFESSIONAL FEES, IF ANY) HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES SET FORTH IN THIS AGREEMENT.
XVII. General Representation and Warranty
You represent and warrant that (i) your use of the Website or Service will be in strict accordance with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable U.S. Export Control Laws) and (ii) your use of the Website or Service will not infringe or misappropriate the intellectual property rights of PICnet or any third party. The term “U.S. Export Control Laws” shall mean all applicable U.S. laws, regulations, rules and notification requirements regarding: (a) U.S. sanction and embargo programs, including those administered by the U.S. Office of Foreign Assets Control (“OFAC”) (31 C.F.R. §§ 500-599); (b) exports and imports, including (i) the U.S. Export Administration Regulations (“EAR”) (15 C.F.R. §§ 730-774) and (ii) the U.S. International Traffic in Arms Regulations (“ITAR”) (22 U.S.C. § 2751 et. seq. and 22 C.F.R. §§ 120-130); (c) prohibitions against bribery, including the U.S. Foreign Corrupt Practices Act (“FCPA”) (15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3, 78m); and (d) foreign boycotts (including “U.S. Anti-Boycott Compliance”) (15 C.F.R. § 760).
XVIII. Indemnification
You agree to indemnify and hold harmless PICnet, its contractors, and its licensors, and their respective directors, officers, shareholders, affiliates, employees and agents, from and against any and all losses, damages, claims and expenses, including reasonable attorneys’ fees, arising out of your use of the Website or Service, including but not limited to any violation of this Agreement or suit by a third party arising out of such violation.
XIX. Legal Dispute Resolution
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules as governed by its Expedited Procedures, and judgment on the award rendered by the sole arbitrator may be entered in any court having jurisdiction thereof. This Agreement shall be governed by and construed under the laws of the U.S. District of Columbia (“Washington, D.C.”), without regard to its conflict of law provisions. The place of arbitration shall be in Washington, D.C. The arbitrator shall be bound by the provisions of this Agreement and base the award on applicable law and judicial precedent. Upon rendering a decision, the arbitrator shall state in writing the basis for the decision, including the findings of fact and conclusions of law upon which the decision is based. The decision of the arbitrator shall be final and binding upon the parties, and shall not be subject to appeal. The arbitrator shall award to the prevailing party all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees.
XX. Assignment
You may not assign or transfer this Agreement for any reason (including by operation of law) without our express, written consent (which consent may be withheld in our sole and absolute discretion). Notwithstanding the preceding sentence, we retain the right to assign this Agreement to any affiliate or other third party, such as an acquiring entity in the event of a merger, a reorganization, a sale of all (or substantially all) of our assets, a change of control or by operation of law.
XXI. Notices
Notices must will be sent to the contact addresses set forth below, and will be deemed delivered as of the date of actual receipt.
To PICnet Inc: 1440 G St NW, Washington, D.C., 20005, USA.
To you: your email and physical mailing address as provided when establishing your Account. You agree that we may provide you notice using the Service or via email using the last known e-mail address(es) on record in your Account. Again, as noted above, you agree to keep (and that is remains your sole responsibility to keep) all of your account information current.
XXII. Force Majeure
Except for the duty to pay, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, power failure, internet or telecommunication outage (including denial of service or other attacks), damage or destruction (hardware or software) of any network facilities or servers, or other similar reason where failure to perform is beyond the control of the non-performing party.
XXIII. Confidentiality
In connection with your use of the Website or Service (“the Opportunity”), you and we acknowledge that each of us may disclose and receive certain Confidential Information (as defined in the next sentence) subject to the terms of this Agreement. “Confidential Information” includes, but is not limited to, all information relating to the intellectual property and business practices of either party whether or not reduced to writing or other tangible medium of expression, whether or not patented, patentable, capable of trade secret protection, or protected as an unpublished or published work under the United States Copyright Act of 1976, as amended. Confidential Information also includes comparable information that one party may receive or has received from others who do business with it. Intellectual property includes information relating to research and development, inventions, discoveries, improvements, methods and processes, know how, algorithms, compositions, works, concepts, designs, ideas, prototypes, models, samples, writings, notes, and patent applications. Business practices includes information relating to intellectual property, business plans, financial information, products, services, manufacturing processes and methods, costs, sources of supply, strategic marketing plans, customer lists and any information flowing therefrom, sales, profits, pricing methods, personnel, and business relationships.
Confidential Information shall not include any information, data or material which: (a) the disclosing party expressly agrees in writing is free of any non-disclosure obligations; (b) at the time of disclosure to the receiving party was known to the receiving party (as evidenced by documentation in the receiving party’s possession) free of any non-disclosure obligations; (c) is independently developed by the receiving party (as evidenced by documentation in the receiving party’s possession); (d) is lawfully received by the receiving party, free of any non-disclosure obligations, from a third party having the right to so furnish such Confidential Information; or (e) is or becomes generally available to the public without any breach of this Letter or unauthorized disclosure of such Confidential Information by the receiving party. Confidential Information that comprises a combination of features shall not be within any of the exceptions set forth above merely because individual features are known or received by the receiving party or are in or fall into the public domain, but only if the combination is known or received by the receiving party or is in or falls into the public domain.
Each party receiving Confidential Information shall treat such information as confidential and shall use the same only for the purpose of evaluating the Opportunity, or as may be expressly authorized in any subsequent, definitive written agreement between the parties. Each party shall use the same care to prevent disclosure of such information as such party uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances.
A receiving party shall not (i) copy or replicate in any manner whatsoever (whether physically, electronically, in writing or otherwise), in whole or in part, any part of the Confidential Information and (ii) provide such copy or replication to a third party without the prior written consent of a disclosing party, which consent shall be in the disclosing party’s sole and absolute discretion. A receiving party will immediately notify the disclosing party in writing of any unauthorized disclosure of the Confidential Information. At any time upon disclosing party’s request, receiving party shall promptly destroy all material in any media or format whatsoever containing, reflecting or in any way derived from the Confidential Information (including notes, summaries, copies, extracts or other reproductions, in whole or in part), regardless of whether the material was prepared by disclosing party or on disclosing party’s behalf. At the disclosing party’s discretion, the redelivery or destruction of the Confidential Information shall be certified by receiving party in writing to disclosing party, and shall not in any way relieve receiving party of its obligation of confidentiality. For the purposes of the foregoing, PICnet shall satisfy its destruction obligations hereunder by deleting your Account (and shall have no further obligation to take additional steps, including but not limited to searching or deleting data from backup tapes or other media).
The foregoing obligations shall not apply to any Confidential Information which must be disclosed pursuant to applicable U.S. law (including federal, state or local laws, regulation, court order, or other legal process), provided the receiving party has given the disclosing party prior written notice of such required disclosure and, to the extent reasonably possible, has given the disclosing party an opportunity to contest such required disclosure at the disclosing party’s expense.
XXIV. Publicity
You agree to permit us to add you and/or your organization’s name and/or representative logo on our Website for the exclusive purpose of advertising our own Website and Service (such as through a listing of our customers). You may opt-out of this marketing request at any time simply by submitting your notice via a support ticket, which is available on the Website (such as at http://support.picnet.net).
XXV. Password Protected Areas
You shall not allow persons other than those expressly authorized by your organization, such as your staff or approved non-staff members of your organization, to view or access web pages within password-protected areas, including pages within the administrator section of your Account. You agree to notify PICnet immediately if you believe or have reason to believe that usernames and/or passwords may have been compromised.
XXVI. CRM Services Not Included
PICnet shall not be responsible for the installation, setup, configuration, management, hosting, support, or any other services related to your customer relationship management (CRM) service, if any, including but not limited to Salesforce.com. Any installation, setup, configuration, management, hosting, support, or any other services related or your CRM service must be requested in a Work Order (as described in greater detail above). You remain solely responsible for paying your CRM provider and PICnet accepts no responsibility for such payment. Any and all support questions regarding your CRM service should be directed to your CRM provider (except for those specific issues for which PICnet accepts a Work Order for Professional Services).
XXVII. CRM Data Modification Responsibility
It is your sole responsibility to ensure that you fully understand how the Website or Service interacts with your CRM service. PICnet shall not be responsible for, and expressly disclaims any liability related to, any modifications related to data within your CRM service connected to the Website or the Service.
XXVIII. Limits and Limitations of Third-Party CRM Services
PICnet may only operate within the limits of the integrated services provided by third-party services (including, but not limited to, Salesforce.com). It is your responsibility to understand the limitations of these services and how they might affect the final delivery of Service or Website as governed by this Agreement.
XXIX. Credit Card Processing Services
PICnet acknowledges that if cardholder data information is in our possession, we are responsible for security of such cardholder data and any ensuing storage, processing, or transmitting activity on your behalf, and would, to that extent only, be responsible for and store and secure such cardholder information under normal industry standards.
XXX. Authority
Each party represents, warrants and covenants that: (i) execution, delivery and performance hereof has been duly authorized by all necessary corporate action and shall not contravene any law or the provisions of any agreement; (ii) the individual(s) executing such was duly authorized to do so; and (iii) this Agreement is a legal, valid and binding agreement and enforceable in accordance with its terms.
XXXI. No Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
XXXII. Severability
If any provisions of this Agreement or a Work Order shall be held to be invalid or unenforceable for any reason, then the remaining provisions will nevertheless remain in full force and effect. If the arbitrator finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
XXXIII. Relationship of the Parties
The relationship of the parties under this Agreement is that of independent contractors, and these Terms of Service neither create, nor shall be construed to create, a joint venture, partnership, agency, employment, or other similar relationship between us.
XXXIV. Headings
The captions and headings used in this Agreement are for convenience in reference only, and are not to be construed in any way as terms or be used to interpret the provisions of this Agreement.
XXXV. Non-Restrictive Relationship
Nothing in this Agreement shall be construed to preclude either party from independently developing, acquiring from other third parties, distributing or marketing services or other products which may perform the same or similar functions as those provided for under this Agreement.
XXXVI. Waiver
Neither party’s failure to exercise any of its rights hereunder shall constitute or be deemed a waiver or forfeiture of any such or other rights.
XXXVII. Entire Agreement
This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements, negotiations, commitments and representations, if any, with respect thereto.
