Terms of Services
1. PREAMBLE
1.1. These Terms of Service, Privacy Policy provided at https://www.bidmind.com/privacy-policy, and Data Protection Addendum (collectively, the “Agreement”) provided at https://www.bidmind.com/wp-content/uploads/2023/09/Bidmind_DPA_website.pdf shall govern the relationship between GDMServices, Inc. d/b/a Bidmind and any of its affiliated companies (the “Company” or “we”, “us”, “our”) with respect to your (“you” or “your”) use, access or interaction with the Self-Service Demand Side Platform Bidmind (the “Self-Service DSP”).
1.2. Please read this Agreement carefully before registering for the Self-Service DSP. By using the Self-Service DSP and our services you agree to this Agreement including any changes or modifications we may make. Modifications shall become effective immediately upon being posted at the Website or through the Self-Service DSP. Your continued use of the Self-Service DSP after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. If you do not accept this Agreement, please do not register or continue using, accessing or interacting with the Self-Service DSP.
1.3. TO ACCEPT THESE TERMS AND CREATE AN ACCOUNT, YOU MUST BE AN ADULT OF LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH YOUR ACCOUNT IS REGISTERED. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS ON YOUR ACCOUNT, INCLUDING THE ACTIONS OF CHILDREN AND ANYONE ELSE WITH ACCESS TO YOUR ACCOUNT.
2. DEFINITIONS
“Account” means the account assigned by Company to you to access and use the Service.
“Ads” means any and all information, material, content and Advertisement that promotes a brand, product or service, including video ads, display ads, native ads and tracking links, which you upload to or through, or deliver using, the Service.
“Bid” means a response to a Bid Request, submitted by the Service on behalf of you to purchase selected Inventory for the placement of Ads.
“Bid Request” means any request sent by third-party exchange partners or publishers through the Service for bids by yours on an impression Inventory.
“End User” means any end user that views, is able to view, or interacts with Ads delivered in connection with the Service.
“Intellectual Property Rights” means (a) any and all proprietary rights provided under, (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law, or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
“Inventory” means the targeted advertising space applicable that a third party exchange partners or publisher designates for the placement of Ads.
“Policies” means, collectively, all applicable written (which includes both printed and electronic) rules, requirements, technical standards, and policies of Company that are located at link or set forth in the Self-Service DSP or Website or otherwise provided by Company to you, and may be modified from time to time.
“Service” means Company’s proprietary hosted, Self-Service Demand Side Platform for automated, real-time bidding to match Ads with Inventory. The Service allows for the targeted delivery of Ads on web, mobile, Advanced TV (including CTV/OTT), including all related user portals, technology and software, and any related service, whether managed by Company or a third party. No software is delivered to or downloadable by you.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use, consumption and withholding taxes.“User Data” means any data that Company collects during delivery of Ads or performance of its obligations under this Agreement, including End User device information, End User session-based browsing behavior, number of impressions, http header information, and any other data that you elect to provide to Company.
“Website” means, collectively, the websites operated by Company or GDMServices, Inc.
3. SERVICE
3.1 Subject to compliance with all terms of this Agreement, Company grants to you during the term of this Agreement a limited, non-exclusive, and non-transferable license (without the right to grant sublicense) to access and use the Service for purposes of receiving bid requests and for submitting bids, transmitting creative for Ads, track the results of campaigns and creatives, solely in the manner enabled by Company and in accordance with all applicable Policies.
3.2. You shall be solely responsible for all activities occurring under Account and for ensuring the accuracy of all information you provide in accessing the Service. Company reserves the right to modify and update the features and functionality of the Service in whole or in part at any time in its sole discretion.
3.3. You are prohibited from accessing the Service to: (i) engage in any marketing activities, promote any product or service or do anything that is illegal, obscene, misleading, discriminatory, defamatory, threatening or harassing; (ii) infringe, misappropriate, or otherwise violate Company’s or any third party’s Intellectual Property Rights; (iii) use Account in any manner that results, or could result, in complaints, claims, fees, fines, penalties or any other liability to Company or to you or to any third parties; (iv) frame, or utilize framing techniques to enclose, any trademark, logo or other proprietary information (including images, text, page layout and form) of Company or its affiliates or any third parties; (v) generate queries, or impressions of or clicks on Ads through any automated, deceptive, fraudulent or other invalid means (including, click spam, robots, macro programs, and Internet agents); (vi) encourage or require End Users to click on Ads through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (vii) spread, or facilitate the spread of, any viruses, worms or other malicious computer programs that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; or (viii) use any robot, spider, other computer program, or manual process to monitor or copy the Service, or any portions thereof.
3.4. You acknowledge and agree that Company acts as a passive conduit for the distribution and publication of information submitted by you and has no obligation to screen communications or information in advance on any of Ads. Company does not warrant the correctness, accuracy, timeliness, reliability of any information posted via the Service nor does Company make any representations regarding the level of impression, the conversion rate, or the timing of delivery of any impressions available through the Service. Furthermore, Company will not be subject to any liability whatsoever for: (i) any failure to provide access to all or any part of the Service due to systems failures or other technological failures of the Service or of the Internet; (ii)network disconnection caused by the network operators; (iii) system maintenance; (iv) server down, server maintenance or device failures of the third party exchange partners or publishers; (v) service interruptions caused by events beyond Company’s control; and (vi) errors in content or omissions in any Ads.
3.5. By using the Service, you accept and agree to the Bidmind Creative Policy available on this link and all advertising shall be in compliance with it.
4. PAYMENT
4.1. By bidding on Inventory through the Service, you are making a programmatic offer to purchase such Inventory. If offer is accepted, you have purchased such Inventory. Purchases are non-cancellable. Inventory purchases are calculated using Company’s statistics and data. If these differ from any other statistics or data, Company’s measurements will prevail.
4.2. Your use of the Service requires prepayment of all applicable fees which may be due to Company in connection with the Service calculated in accordance with the terms set forth herein. Company is under no obligation to provide any Service until prepayment is received. You shall pay to Company the initial prepayment at least $ 100 as a minimum deposit for the first time within two (2) business days after the access to the Service with a further standard top-up option starting from USD 100, unless otherwise agreed between the Parties.
4.3. For the purpose of effecting payments, the Company will issue you with invoices for prepayment of amount upon your request, when you wish to add monetary funds to the Account balance or at monthly intervals, or at any other such intervals which agreed between the parties. You hereby promise, agree and covenant to effect payment of the amounts mentioned in the invoices. Once the payment has been successfully made and it has reached the Company, your balance shall bе updated in the Service. The Company renders Services оп the basis of the Client ‘s actions in the Service. Payment, unless there is an agreement to the contrary shall be made before the start of the campaign.
4.4. You must pay for the Service using PayPal or wire transfer or other means as communicated between the Parties. You are responsible for confirming the accuracy of all information provided for each payment (such as contact information, payment amounts, credit card numbers and expiry dates, and wire information, as applicable).
4.5. You hereby agree that all the payment you deposit into Account with Company is non-refundable and non-recoupable, except the other provided in this Agreement. Company has the right to designate new payment methods and update the prepayment range. The charges for impressions you successfully purchased will be debited from Account at the time of purchase. It is your responsibility to ensure that Account has sufficient funds to pay for the impressions. If Account balance is less than that required to purchase the Inventory that you intended to purchase, the contemplated transaction may not be completed. If the transaction is not completed, Company will not be liable to you or to any third party, for any loss suffered as a result of such incomplete transaction.
4.6. Unless otherwise specified, all amounts on the Service refer to US dollars and all payments shall be payable in US dollars.
4.7. You are responsible for paying any and all withholding, sales, value added or other taxes, duties, levies or charges applicable to this Agreement, other than taxes based on Company income.
5. ACCOUNT
5.1. If Account is inactive for a six-month period (i.e. have not purchased any Ads or did not log into Account during 6 months), Account balance will be charged as an inactive fee, meaning the balance reset to zero and Account will be closed. Company may, but has no obligation to, give a prior notice of the imposition of any inactive fee.
5.2. If Account is inactive for a three-month period after the initial prepayment (i.e., have not started running any campaigns or did not log into Account during 3 months), Account balance will be charged as an inactive fee, meaning the balance reset to zero and Account will be closed.
5.3. Company retains the right, at its sole discretion, to terminate any accounts involved with any illegal, fraud, deceptive, automated, bot and related activities.
6. CONTENT
6.1. You grant to Company a worldwide, royalty-free, non-exclusive, transferrable license, under all of your Intellectual Property rights, to: (i) use, display, perform, reproduce, distribute, publish, modify, adapt, and translate such Ads, solely in the manner and for the purposes for which the Service is used from time to time; (ii) to collect, use and modify any data related to Ads; (iii) copy, transmit and display the logos, trademarks, service marks and/or identifying words associated with you, Ads and the products or services under promotion through Service; (iv) use data collected for market research and for press releases without identifying you. In addition, you hereby grant Company the right to display your logo and description on Website or any other media as part of Company’s client list.
6.2. You must ensure that all Ads that you submit through the Service comply with the following: (i) Company’s Policies; (ii) the applicable publisher’s rules, guidelines, policies, size parameters and submission requirements; (iii) any other requirements that Company makes available to you from time to time; and (iv) the terms and conditions of this Agreement or the applicable laws and regulations. If you are uncertain as to whether Ads meet the Policies or publisher’s guidelines, you should contact a Company representative prior to placing Ads in order to avoid interruptions, penalties or Account suspension or closure.
6.3. Company reserves the right to reject or cancel, at its sole discretion, any Ads at any time, for any reason whatsoever, including but not limited to belief by Company that the relevant Ads or the elements contained therein may subject Company or any third parties to any liability or is materially adverse to Company’s interests. The fact that Company has not rejected any Ads shall in no way reduce, limit or otherwise affect your responsibility and obligations under this Agreement.
If Company determines at its sole discretion at any time that Ads provided by you are non-compliant with its requirements, or for any other reason or that any of the products or service promoted by you through the Service violates any applicable laws, rules, regulations or any of Policies, Company may also suspend and/or delete Account without prior notice to you.
6.4. You are solely responsible for all Ads creating, uploading or traffic using the Service. Company is not liable for any loss or damage that Ads may cause to you or others. You represent to Company that you have all rights and permissions necessary to traffic Ads using the Service. If any damage was caused by Ads to a third party partner, Company reserves the right to pass your contact details to affected party.
7. INTELLECTUAL PROPERTY
7.1. You retain all ownership rights in and to any materials created, developed or provided by you in connection with this Agreement (including User Data, Ads) and all Intellectual Property Rights related to each of the foregoing.
7.2. Company retains all ownership rights in and to the Website, the Self-Service DSP, any content thereon, the Service, the technology related to the Service, any and all technology and any content created or derived from any of the foregoing and any materials created, developed or provided by or on behalf of Company in connection with this Agreement, including all Intellectual Property Rights related to each of the foregoing.
The Service may include certain third party services, technology, tools, data, or content of any type, which are provided under license from third parties providers, and is subject to copyright and other intellectual property rights owned or licensed by such third parties. Your use of the Service shall not violate any license terms of third party providers. You may be held liable for any unauthorized use, copying or disclosure of certain third party technology, tools, data or other content.
COMPANY MAKES NO REPRESENTATION, WARRANTY, OR OTHER COMMITMENT REGARDING THE THIRD PARTY SERVICES, TECHNOLOGY, DATA, OR OTHER CONTENT, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR USE THEREOF.
7.3. Each party agrees to not use the other’s trademarks without express written consent, except the other provided in this Agreement.
7.4. In connection with the operation of the Service, Company collects and receives User Data with regard to your use of the Service. You agree that Company may: (i) use such data for purposes of providing you with use of the Service and to fulfill its obligations in connection with bids placed by you; (ii) disclose such data to its third party service providers that assist it in making the Service available as is reasonably necessary for such assistance; (iii) disclose such data as may be required by law or legal process; (iv) to improve the Website or Service; and (v) use and disclose such information when it is aggregated with similar information relating to other Company customers or End Users and when it does not specifically identify you or End User.
You warrant that your use of the Service will comply with all laws, privacy policies and regulations, including those pertaining to privacy and/or data protection relating to the collection, use and disclosure of User Data, and that you obtain any consents, authorizations and clearances from End Users that may be required in connection therewith or have another lawful basis for doing so, including providing proper notice for the collection, use, storage and transfer of such information. By way of example, and not of limitation, you shall comply with your respective obligations set forth in GDPR also known as REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC and CCPA also known as CALIFORNIA CONSUMER PRIVACY ACT of June 28, 2018 on the protection of California consumers rights relating to the access to, deletion of, and sharing of personal information that is collected by businesses.
Please refer to our Privacy Policy for information on how Company collects, uses and discloses your personally identifiable information. By using the Service, you agree to Company’s use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
8. WARRANTIES
8.1. Each party represents and warrants throughout the term of this Agreement to the other that it: has the authority to enter into this Agreement, that its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party, and that the terms and conditions hereof are binding on it; has sufficient rights to grant any licenses granted hereunder; and will comply with all applicable laws, rules guidelines and regulations.
8.2. You warrant that in your use of the Service you: (i) will comply with the Policies and all DSP`s requirements; (ii) comply with all applicable privacy policies of the publishers of the Inventory; (iii) are solely responsible for all aspects of dealing with End Users and your Advertisers or Clients (e.g., selling, collection of payment, client service); (iv) are solely responsible for correctly installing and using the Service; (v) have the lawful right to post and distribute Ads to or through the Service; and (vi) are solely responsible for Ads, including with respect to the quality, accuracy, legality and appropriateness.
8.3. Company warrants that: (i) it owns or otherwise has sufficient rights to the Service to grant to you the rights granted herein; (ii) it will take commercially reasonable efforts to ensure the security of Ads and shall treat such information in accordance with this Agreement.
8.4. THE COMPANY WEBSITE/PRODUCT AND SERVICES PROVIDED HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
8.5. THE COMPANY DOES NOT WARRANT THAT THE COMPANY WEBSITE/PRODUCT AND SERVICES WILL OPERATE ERROR-FREE, THAT THE MARKETPLACE AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT COMPANY WILL CORRECT ANY ERRORS IN THE COMPANY WEBSITE/PRODUCT AND SERVICES. CLIENT AGREES THAT COMPANY WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO CLIENT OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
9. CONFIDENTIALITY
9.1. As used in this Agreement, the term “Confidential Information” of the party disclosing such information shall refer to: (a) such party’s trade secrets, business plans, strategies, methods and/or practices; (b) such party’s software, tools, trade secrets, know-how, designs, technical information, proprietary methodologies, computer systems architecture and network configurations; (c) any other information relating to such party that is not generally known to the public, including information about its personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (d) any other information which, from all the relevant circumstances, should reasonably be assumed to be confidential and proprietary.
9.2. Each party agrees during the term of this Agreement and three (3) years following its termination that it will not disclose any Confidential Information of the other party to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Each party will protect the Confidential Information of the other party in the same manner that it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care. This supplements and does not supersede any existing non-disclosure or confidentiality agreements between the Parties.
9.3. The foregoing obligations shall not apply to the extent Confidential Information of a disclosing party: (a) must be disclosed by the receiving party to comply with any requirement of law or order of a court or administrative body including any applicable stock exchange (provided that each party agrees to the extent legally permissible to notify the other party upon the issuance of any such order, and to cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (b) is known to or in the possession of the receiving party prior to the disclosure of such Confidential Information by the disclosing party, as evidenced by the receiving party’s written records; or (c) is known or generally available to the public through no act or omission of the receiving party; or (d) is made available free of any legal restriction to the receiving party by a third party; or (e) is independently developed by the receiving party without use of any Confidential Information.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, OR LOSS OF CLIENTS, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF ANY SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY YOU TO COMPANY DURING THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. NO ACTION ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF ITS FORM, MAY BE BROUGHT BY YOU MORE THAN 3 MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED AND IN ANY EVENT NO LATER THAN 3 MONTHS AFTER THE TERMINATION OF THIS AGREEMENT.
10.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF COMPANY OR USE OF ANY ADS . FURTHER, COMPANY EXPRESSLY DISAVOWS ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD YOU HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF PARTICIPATION OR USE OF THE SERVICE. THE SELF SERVICE DSP OR THE SERVICE IS PROVIDED TO YOU BY COMPANY ON AN ‘AS IS‘ AND ‘AS AVAILABLE‘ BASIS. IN ADDITION, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE SELF-SERVICE DSP OR ANY RELATED SERVICES WILL REMAIN UNINTERRUPTED OR ERRORFREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE OR THE RESULTS OF THIS WEBSITE OR THE SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. COMPANY SHALL HAVE NO LIABILITY FOR ANY INTERRUPTIONS IN THE USE OF THIS WEBSITE OR THE SERVICE.
10.3. Indemnification
You agree to indemnify, defend, and hold Company harmless from and against any liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, proceeding, fine, or penalty initiated or imposed by a third party to the extent attributable to: (i) your failure to secure all rights, title, and interest necessary to display Ads via the Service; (ii) allegation that the content, or that the services, products or goods being advertised, violate any applicable law; (iii) allegation that Ads infringe upon, violate, or misappropriate any Intellectual Property Rights, or slander, defame, or libel any person; or (iv) any alleged breach by you of its obligations under this Agreement.
As a precondition to indemnity coverage, the party seeking indemnification (the “Indemnified Party”) must comply with the following indemnification procedures: (i) Indemnified Party promptly notifies indemnifying party (the “Indemnifying Party”) in writing of the claim, except that any failure to provide this notice promptly only relieves Indemnifying Party of its indemnification responsibility to the extent its defense is materially prejudiced by the delay; (ii) grants Indemnifying Party sole control of the defense or settlement of the claim; and (iii) provides Indemnifying Party, at Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim, but in a manner consistent with Indemnified Party’s confidentiality obligations and preservation of attorney/client and work product privileges.
11. TERM & TERMINATION
11.1. This Agreement shall commence upon your acceptance and remain in effect until terminated.
11.2. Either party may terminate this Agreement for any reason by providing the other party with thirty (30) days prior written notice.
11.3. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a party if:
• the other party commits a material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the non-breaching party, or
• a petition in bankruptcy or other insolvency proceeding is filed by or against the other party, or if an application is made for the appointment of a receiver for the other party of its property, or if the other party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course.
11.4. Company will refund the unused Account balance (if any), with deducting a Paypal or a bank fee or other payment system fee, within 30 days after the effective date of termination.
Company will only send refunds to the source from which payment was made. You may be required to provide additional information or documentation in order for Company to confirm identity, before any refund request will be processed. Company shall not provide refund if you entered malware, malicious Ads or any kind of prohibited content or activity through the Service. In this case, Company reserves the right to terminate Agreement without refund.
11.5. Upon termination or expiration of this Agreement, all rights granted herein will revert to the granting party and all licenses will terminate, and you will make no further use of the Service. Except as otherwise provided herein, any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination or expiration.
12. GENERAL
12.1. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA without regard to conflicts of law provisions. Any dispute arising out of this Agreement or the interpretation thereof, shall be discussed by the Parties in the first instance, and if possible resolved by negotiation. In the event that the matter cannot be so resolved, it shall be submitted to and determined by the applicable Court of the Commonwealth of Massachusetts, USA.
12.2. You may not transfer or assign this Agreement or any right or obligation under this Agreement, in whole or in part, without the prior written consent of the Company. Company may transfer or assign this Agreement, or any right or obligation under this Agreement, at any time, and is not required to provide you with notice of such assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns, as applicable. Any assignment in violation of this Section shall be void.
12.3. Except as otherwise expressly provided in this Agreement, all notices sent by one Party to the other Party pursuant to or in connection with this Agreement shall be in writing and shall be deemed to have been sufficiently given and received for the purposes of this Agreement if sent to the other Party at the email address or via Account; or mailing it to the street address listed in your Account; and shall be deemed received by the date of transmission.
12.4. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between the Parties. Neither party has any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
12.5. Neither party shall be liable to the other party for any delay or failure in performance under this Agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of regulatory agencies, or national disasters.
12.6. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct.
12.7. A waiver of any provision of this Agreement shall only be valid if provided in writing and shall only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall continue in full force and effect.
12.8. This Agreement, as amended from time to time, contains the full and complete understanding among the Parties hereto, supersedes all prior agreements and understandings whether written or oral pertaining hereto and you cannot change the terms of this Agreement. Company may, but has no obligation to give notice of changes or modifications of the Agreement. You shall check updates of the Agreement from time to time by yourself.