SKYLAB TECHNOLOGIES INC.
TERMS OF SERVICE
Last Updated: March 1, 2021
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Client”) and Skylab Technologies Inc. (“Skylab”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE. You also agree to ensure that anyone who accesses or uses the Service using your password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CLIENT” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
Skylab may update this Agreement at any time, without notification to you, and you should review this Agreement from time to time. Your continued use of the Service will be deemed irrevocable acceptance of any such updates. Before you continue, you should print or save a local copy of this Agreement for your records.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representation and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
1. Definitions. As used in this Agreement:
1.1. “Anonymized Data” means data, including Client Content, which has been stripped of information potentially identifying Client or which contains any Personal Information, and which has been manipulated, isolated, deconstructed or combined into generalized anonymous information that cannot be reverse-engineered to identify Client or any other person.
1.2. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that a party knew or should have known, under the circumstances, was considered confidential or proprietary. Skylab Confidential Information includes, without limitation, information derived from use of, or concerning the Service, the System or the Documentation and the terms of this Agreement.
1.3. “Client Content” means any content including photographs, images, or graphics submitted by Client or Users through the Service or provided by Client or Users to Skylab as part of the Service.
1.4. “Documentation” means the designated published user manuals, provided by Skylab that describe for the User aspects of the System.
1.5. “Effective Date” means the date identified by Skylab in an approved Subscription Form as the “Effective Date” or, if not specified in the Subscription Form, the date Client first uses the Service, Documentation or any portion thereof.
1.6. “Fees” is defined in Section 4.
1.7. “Force Majeure Event” is defined in Section 11.3.
1.8. “Service” means the various on-line services for the processing of photographic images including cropping, colour correction and retouching provided by Skylab to Client using the System, as made available by Skylab from time-to-time as specified in the Subscription Form.
1.9. “Skylab Property” means the Service, System, Anonymized Data, and all other intellectual property created, used or made available by Skylab to Client pursuant to the Services and this Agreement, and all modifications or derivatives thereof or improvements thereto.
1.10. “Subscription Form” means an online or offline order document representing the subscription to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time-to-time) that, upon execution, is incorporated in and made a part of this Agreement from time-to-time.
1.11. “System” means the technology, including websites, hardware, software and systems, used by Skylab to deliver the Service to Clients.
1.12. “UserID” is defined in Section 3.1.
1.13. “Users” means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Service for or on behalf of Client and have been supplied user identifications and passwords for this purpose.
2. The Service.
2.1. Subscription to the Service. Conditional on Client: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; and (b) cooperating with the reasonable requests of Skylab, Skylab will provide the Service in accordance with this Agreement to the Client solely for Client’s internal business purposes and not for resale of the use of the Service to any third party whatsoever. Client may order the Service under this Agreement by placing written, signed orders on a Subscription Form. Only the execution of a Subscription Form related to the Service by Client and by Skylab constitutes a binding contract between those parties. Client agrees that its purchase of the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Skylab with respect to future functionality or features.
2.2. Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Skylab will use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Skylab will not have an obligation to provide a correction for all such nonconformities.
2.3. System. Skylab will use commercially reasonable efforts to make the System available 24 hours a day, 7 days a week, with minimal downtime. Skylab does not guarantee 24x7 uptime availability of the System. Client acknowledges and agrees that the Service and the System will be unavailable during: (a) downtime and upgrades per Section 2.4; and (b) unavailability caused by circumstances beyond Skylab’s reasonable control, including Force Majeure Events. Skylab may schedule downtime for maintenance and upgrades to the System without prior notice but will use reasonable efforts to provide advance notice where practicable.
2.4. System Updates. Skylab may update any aspect of the Service or System at any time in its sole discretion, provided however that no such update will result in a material diminution of the functionality or operability of the Service.
2.5. Internet Security Disclaimer. Client acknowledges and agrees that Skylab exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Skylab’s control. Client acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Client assumes responsibility for its use of the Service or connection to the System.
2.6. Limitation, Suspension or Termination of Access. In addition to other rights and remedies of Skylab under this Agreement, Skylab may suspend, terminate or limit (in Skylab’s sole discretion) Client’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Client’s systems, or any data on the Service; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Skylab or its customers from harm to reputation or business. Skylab will use commercially reasonable efforts to notify Client of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Skylab will restore Client’s access to the Service when Skylab determines the event has been resolved. Nothing in this Agreement will limit Skylab’s right to take any action or invoke remedies, or will act as a waiver of Skylab’s rights in any way with respect to any of the foregoing activities. Skylab will not be responsible for any loss or damages of any kind incurred by Client as a result of any limitation, termination or suspension of the Service under this Agreement.
2.7. Subcontractors. Client acknowledges and agrees that Skylab may retain the services of independent contractors, subcontractors and consultants (“Contractors”) from time to time to provide, or to assist Skylab in providing, the Service. Any Contractors used by Skylab to provide the Service shall remain under the direction and control of Skylab.
3. Client’s Use of the Service.
3.1. Access and Security Guidelines. Subject to the limitations and restrictions associated with Client’s subscription account, Client may set up User accounts by supplying a unique user identification name and password (“UserID”) to Skylab for each User. Users may only access and use the Service with the specific UserID. Client is primarily and fully responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Client is responsible for any and all activity occurring under the UserIDs associated with Users. Client will promptly notify Skylab of any actual or suspected unauthorized use of the Service. Skylab may require that a UserID be replaced at any time.
3.2. Client Responsibilities and Restrictions. At all times, Client will, comply with all applicable laws, including privacy laws, while using the Service. Without limiting the generality of Section 3.1, Client agrees that Client will not, and will not permit any person, including without limitation the Users, to:
(a) use the Service other than as expressly permitted by this Agreement;
(b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
(c) use the Service to upload, collect, transmit, store, use or process, or ask Skylab to obtain from third parties, any data: (i) that Client does not have the lawful right to copy, transmit, distribute and display (including any Client Content that would violate any confidentiality or fiduciary obligations that Client might have with respect to the Client Content); or (ii) for which Client does not have the consent or permission from the owner of any Personal Information contained therein to provide for the purposes of, and as contemplated by, this Agreement;
(d) use the Service in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other Personal Information in a misleading manner or for fraudulent or misleading purposes;
(e) use the Service in a manner that is libelous or defamatory, harmful to minors in any way, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
(f) use the Service in a manner that is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Skylab;
(g) use the Service to impersonate a Skylab employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(h) sublicense, rent, lease or transfer any of Client’s rights under this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau or ASP type service;
(i) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service provided that if any local law permits such activity, Client will provide 10 days written notice to Skylab of its intent to do so;
(j) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service or conduct any scraping or other automated data gathering activity;
(k) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware; or
(l) attempt to defeat, avoid or circumnavigate any security restriction or other technical measures of the Service or System.
4. Fees, Payment and Suspension.
As consideration for the provision of the Service, Client will pay Skylab the fees (“Fees”) set forth in and in accordance with the Subscription Form. All Fees will be billed in advance on an annual basis and are due within  days of invoice date, unless otherwise agreed to in the Subscription Form. Overdue amounts shall accrue interest at the rate of [12%] per annum, or at the highest legal interest rate, if less. Client shall reimburse Skylab for all expenses (including reasonable attorneys’ fees) incurred by Skylab to collect any amount that is not paid when due. All Fees owed by Client in connection with this Agreement are exclusive of, and Client shall pay, all sales, use, excise and other taxes that may be levied upon Client in connection with this Agreement, except for employment taxes and taxes based on Skylab’s net income. Skylab reserves the right (in addition to any other rights or remedies Skylab may have) to terminate, or discontinue the Service and suspend all UserIDs and Client’s access to the Service if any Fees set forth in the Subscription Form are more than 30 days overdue until such amounts are paid in full. Client shall maintain complete, accurate and up-to-date Client billing and contact information at all times.
5. Confidential Information.
5.1. Obligation. Each receiving party agrees (a) to hold the Confidential Information of the disclosing party in strict confidence, (b) to limit access to the Confidential Information to those of its employees, agents or Contractors having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use the disclosing party’s Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, each receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that each receiving party gives the disclosing party prior written notice of such disclosure in order to permit the disclosing party to seek confidential treatment of such information.
5.2. Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of a receiving party, (b) was in a receiving party’s lawful possession prior to the disclosure, as shown by a receiving party’s competent written records, (c) is independently developed by a receiving party without reference to the Confidential Information, as shown by a receiving party’s competent written records, or (d) is lawfully disclosed to a receiving party by a third party without restriction on disclosure.
6.1. System and Technology. Client acknowledges that Skylab retains all right, title and interest in and to the Skylab Property, and that the Skylab Property is protected by intellectual property rights owned by or licensed to Skylab. Other than as expressly set forth in this Agreement, no license or other rights in the Skylab Property are granted to the Client, and all such rights are hereby expressly reserved by Skylab. Skylab will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use incorporate into the Service and exploit any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the Service.
7. Term and Termination.
7.1. Term. The term of this Agreement will commence on the Effective Date and will continue for the period agreed to in the Subscription Form, until terminated by either party as set forth in this Section 7.
7.2. Termination for Convenience. Subject to any contrary provision of the Subscription Form, either party may terminate this Agreement for any reason by giving the other party at least 30 days’ prior written notice provided that if Skylab is the terminating party, it will provide a prorated refund of any prepaid accounts reflected to the future unused Service period.
7.3. Termination for Default. A party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within 30 days after written notice of such breach.
7.4. Effect of Termination. Upon the termination of this Agreement for any reason, (a) any amounts owed to Skylab under this Agreement before such termination will become immediately due and payable; and (b) Client will return to Skylab all property (including any Confidential Information) of Skylab in its possession or control. Skylab will, upon any early termination of this Agreement, allow the Client to remove a copy of its Client Content from the Service and Systems, without the right to modify, enhance or add to, the Client Content (either through on-line access or an off-line mechanism provided by Skylab) for up to 10 days after termination. Thereafter, Skylab may remove and delete all Client Content from the System and all Client access to or use of the System and Service will immediately terminate. The rights and duties of the parties under Sections 4 through 6, this Section 7.4 and Sections 8 through 11 will survive the termination or expiration of this Agreement.
8. Disclaimer of Warranties & User Decision Making.
THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY SKYLAB TO CLIENT ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. SKYLAB HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. SKYLAB DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SKYLAB EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IN CONNECTION WITH CLIENT’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER.
SKYLAB IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO THIRD PARTY PLATFORMS, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY SKYLAB, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY SKYLAB.
THE SERVICES ARE OFFERED AND CONTROLLED BY SKYLAB FROM ITS FACILITIES IN CANADA. SKYLAB MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
CLIENT WILL ENSURE THAT ANY DETERMINATION OR DECISIONS MADE BY A CLIENT RELATED TO OR ARISING OUT OF THE SERVICES ARE MADE WITH HUMAN INTERVENTION AND HUMAN AGENCY, AND ARE NOT SOLELY RELIANT UPON THE OPERATION OR PROCESSING OF THE SERVICES.
Client will indemnify, defend and hold harmless Skylab and its affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives (collectively, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost or liability (including reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement or the Service, including without limitation in relation to: (a) Client’s use, non-use or misuse of the Service; (b) violation or alleged violation of this Agreement; (c) the violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein; or (d) an allegation that the Client Content, or the use of Client Content pursuant to this Agreement, infringes the intellectual property rights or other rights of a third party or otherwise causes harm to a third party including, but not limited to section 3.3. Skylab reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify Skylab and Client agrees to cooperate with Skylab’s defense of these Claims. Client will not settle any matter without the prior written consent of Skylab which imposes any obligation to pay money or make an admission of liability. Skylab will use reasonable efforts to notify Client of any such Claims upon becoming aware of them.
10. aps- Liability.
The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
10.1. Amount. SKYLAB’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY SKYLAB UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL SKYLAB’S SUPPLIERS OR PROVIDERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2. Type. IN NO EVENT SHALL SKYLAB BE LIABLE TO CLIENT FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL SKYLAB BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3. No Jury Trial. CLIENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CLIENT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10.4. No Participating in Group Claims. CLIENT AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CLIENT HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
10.5. Limitation of Time. Client agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.
11. General Provisions
11.1. Publicity. Skylab may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Client agrees to allow Skylab to use Client’s name in customer lists and other promotional materials describing Client as a customer of Skylab and user of the Service.
11.2. Assignment. Client may not assign this Agreement to a third party without Skylab’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Client. Skylab may assign this Agreement or any rights hereunder to any third party without Client’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
11.3. Force Majeure. If the performance of any obligation hereunder, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labour strikes and other labour disturbances, power surges or failures, Internet connectivity, or the act or omission of any third party (each, a “Force Majeure Event”), the party shall be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize the disruption of such Force Majeure Events and shall use reasonable efforts to remove such causes of non-performance.
11.4. Arbitration. EXCEPT FOR ANY DISPUTE RELATED TO THE INTELLECTUAL PROPERTY RIGHTS OF A PARTY, ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE REFERRED TO AND FINALLY RESOLVED BY ARBITRATION IN ENGLISH, ADMINISTERED BY THE BRITISH COLUMBIA INTERNATIONAL COMMERCIAL ARBITRATION CENTRE PURSUANT TO ITS APPLICABLE RULES. THE PLACE OF ARBITRATION SHALL BE VANCOUVER, BRITISH COLUMBIA, CANADA. THE NUMBER OF ARBITRATORS SHALL BE ONE.
11.5. Choice of Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AGREEMENT.
11.6. Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing by email or physical mail by courier at the addresses set forth in the Subscription Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
11.7. Entire Agreement. This Agreement, including the Subscription Form, is the entire understanding and agreement of the parties, and supersedes and replaces any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a written amendment signed by both parties may modify this Agreement.
11.8. Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9. Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.