Master Software-as-a-Service Terms

UPDATED February, 11th 2022

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These Master Software-as-a-Service Terms (“Terms”) apply if you have signed a Service Order with Friendbuy and that Service Order incorporates the “Friendbuy Master SaaS Terms” by reference. The Service Order and these Terms together are your “Agreement” with Friendbuy.

In these Terms, “Friendbuy” or “we,” “us,” or “our” refers to Friendbuy, Inc., and “Company” or “you” means the entity that entered into the Service Order.

Background

Friendbuy provides services via a proprietary platform that enables businesses to acquire new customers, drive sales and generate leads using Friendbuy’s website, API(s), software, applications, web tools, share buttons and widgets. For example, Company can use the Friendbuy Platform to create offers with content provided by Company that can be distributed through Company’s website, social media or email. Company acknowledges that it has had the opportunity to test and evaluate the Friendbuy Platform prior to execution of this Agreement.

Terms and Conditions

In consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows:

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1. Defined Terms.

1.1 “Affiliate” means an entity that controls, is under common control with or is controlled by a party to this Agreement.

1.2 “Company Data” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an End User or household that is processed for or on behalf of Company under this Agreement.

1.3 “Company Materials” means all creative content and materials that are provided by Company for use with the Friendbuy Platform (e.g., offers and marketing material provided by Company to be used in Friendbuy’s widgets).

1.4 “Documentation” means the written specifications for the Services available at https://developers.friendbuy.com/

1.5 “End User” means an individual end user.

1.6 “Fees” means all fees set forth in a Service Order.

1.7 “Friendbuy Code” means the code provided by Friendbuy for implementation on the Company Properties.

1.8 “Friendbuy Platform” means the software-as-a-service platform that is made available by Friendbuy under this Agreement.

1.9 “Intellectual Property Rights” means all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress or other proprietary trade designations, including all registrations and applications therefore, (iv) all rights throughout the world to proprietary know-how, trade secrets and other confidential information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.

1.10 “Service Orders” means the service orders that are executed by both parties (provided that such service orders are not expressly subject to a different agreement).

1.11 “Service(s)” means the Friendbuy services set forth in any Service Order, including but not limited to services provided via the Friendbuy Platform and the Friendbuy Code.

1.12 “Term” has the meaning given in Section 3 (Term).

1.13 “Territory” means the countries and locales set forth in a Service Order.
“Usage Metrics” means the data generated by Company’s use of the Services, such as share rates and conversion rates. For the avoidance of doubt, Usage Metrics do not include any Company Materials or Company Data.

2. Service Orders.

The Services to be provided to Company under this Agreement shall be set forth in Service Order. This Agreement incorporates by reference the terms of all Service Orders.

3. Services, Company Materials and Company Data.

3.1 During the term set forth in each Service Order and in accordance with the terms in this Agreement, Friendbuy grants to Company a non-exclusive, non-transferable, non-sublicensable, revocable right within the Territory to (a) access and use the products and components licensed from Friendbuy for marketing purposes of new customer acquisition and revenue growth, (b) integrate Friendbuy on the Company Properties as described in the Documentation, and (c) display links to Company’s privacy policy and terms of service at all times Company Data is collected from End Users via the Service(s).

3.2 As between Company and Friendbuy, Company owns all right, title and interest in the Company Materials and the Company Data. Company hereby grants to Friendbuy, a royalty-free, sub licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, transmit, distribute, modify, reproduce, and publicly display Company Materials and Company Data for the purpose of providing the Service to Company. Company acknowledges and agrees that any Company Materials shared on social media or other third party platforms may be displayed perpetually (e.g., if Company uses the Service to share Company Materials on Twitter, the Company Materials may not be able to be deleted because they have been retweeted or otherwise copied on Twitter by other users).

3.3 Aside from the license granted above, neither party grants the other party any other licenses, express or implied. Company will not reproduce, publicly display, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Services, the Friendbuy Platform, the Friendbuy Code or any portion thereof. Under no circumstances may Company use the Service, the Friendbuy Platform or the Friendbuy Code to gather competitive intelligence (e.g., to generate information to be used in creating or improving a competitive service).

3.4 Friendbuy will not, and certifies that it will not, collect, retain, use or otherwise disclose Company Data for any purpose other than for the specific purpose of performing the services specified in this Agreement or as otherwise required by law.

4. Representations and Warranties.

4.1 Each party represents and warrants that it has the full right, power and authority to enter into this Agreement and each Service Order and that it is under no obligation to any third party that it has a reasonable basis to believe would conflict or interfere with its performance of its obligations under this Agreement.

4.2 In addition, Friendbuy represents and warrants that:

4.2.1 Friendbuy has sufficient rights to grant the licenses set forth herein and to provide the Services, the Friendbuy Platform and the Friendbuy Code as described in this Agreement.

4.2.2 Friendbuy is engaged in an independent business and will perform all obligations under this Agreement as an independent contractor and not as the agent or employee of Company; all Friendbuy personnel involved in fulfilling Friendbuy’s obligations under this Agreement shall be considered solely Friendbuy’s employees or agents; Friendbuy has and retains the right to exercise full control of and supervision over such personnel; and Friendbuy is solely responsible for all matters relating to compensation and benefits, including payroll taxes, unemployment compensation, disability insurance, and health and welfare benefits, of all such personnel.

4.3 In addition, Company represents and warrants that:

4.3.1 Company has sufficient rights to grant the license to Company Materials set forth herein and to provide the Company Materials for use by Friendbuy as described in this Agreement.

4.3.2 Subject to Friendbuy’s provision of the ability to display links to Company’s privacy policy and terms of service as described in Section 3.1 above, Company has sufficient rights to grant the license to Company Data set forth herein and to provide the Company Data for use by Friendbuy as described in this Agreement.

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5. Fees, Payment, Taxes.

Fees for all Services will be set forth in Service Orders. If Friendbuy introduces additional features, functionality or services after a Service Order takes effect, such additional features, functionality or services may require additional fees and/or terms.

Friendbuy’s fees do not include any present or future taxes of any kind (“Taxes”). Friendbuy may charge applicable Taxes in addition to the fees due under this Agreement. Except for any Tax that Friendbuy has charged to Company (and that Company has actually paid to Friendbuy), Company is responsible for remitting to the appropriate authority all Taxes based on or arising from this Agreement other than Taxes based on Friendbuy’s net income. All payments due under this Agreement shall be made without setoff or deduction, including on account of any Taxes. If Friendbuy is held responsible for any Taxes arising from the Agreement (aside from Taxes based on Friendbuy’s net income), Company will reimburse Friendbuy for such payments.

All fees will be paid in U.S. Dollars. Company will be responsible for all collection costs and reasonable attorneys' fees that Friendbuy incurs to collect any unpaid bills.

6. Compliance.

6.1 Friendbuy will comply with all applicable laws and regulations in its provision of the Services, the Friendbuy Platform and the Friendbuy Code within the Territory, in the form provided by Friendbuy. Company will comply with all applicable laws and regulations in its use of the Services, the Friendbuy Platform and the Friendbuy Code.

6.2 Neither party will knowingly introduce viruses or other malware to the other party’s systems, third party networks or end users or infringe any third party’s intellectual property or other rights. Company will not use the Service to send spam or in a manner that could reasonably be expected to damage the Service. Friendbuy reserves the right to remove any Company Materials or Company Data if Friendbuy reasonably believes that the Company Materials or Company Data violate an applicable law or regulation or create a reasonable risk of imminent harm.

6.3 Without limiting the foregoing, in the event Company uses email addresses with the Friendbuy Platform, Company will (a) use these email addresses in compliance with all applicable laws and regulations, including the CAN-SPAM Act if applicable; and (b) post a legally sufficient privacy policy on the Company Property, and use these email addresses strictly in compliance with such privacy policy.

6.4 Company will not attempt to circumvent any features that protect the security of the Service, the Friendbuy Platform or the Friendbuy Code, restrict the ability to download or copy information hosted by the Service, or limit usage. Aside from use of the API in accord with the Documentation, Company will not use automated means (e.g., bots) to access or use the Service without Friendbuy’s prior written permission.

6.5 In its use of the Services, Company will comply with the terms of service and privacy policies of any third party websites where its offers or promotions will be displayed (e.g., Facebook, Twitter), and will require that its End Users also comply with these policies.

6.6 Company is solely responsible for fulfilling any promotions and offers it creates using the Service. Friendbuy takes no responsibility for fulfilling Company’s promotions or offers.

7. Usage Metrics.

Each party may use Usage Metrics as follows: Company may use Usage Metrics for any business purpose provided that (a) it complies with any applicable privacy policy and (b) it does not disclose data that describes or reflects the performance of the Service to third parties except service providers who are under confidentiality restrictions. Friendbuy may use Usage Metrics (x) internally for any business purpose (e.g., to improve the effectiveness of the Services, to plan technical infrastructure developments, etc.) and (y) externally if such data is aggregated or made anonymous such that third parties cannot attribute the data to Company (e.g., to communicate to potential clients that over the last quarter, the average share rate on Friendbuy was X%, to communicate to potential investors that Friendbuy’s total revenue for the prior year was $X, etc.).

8. Company’s Account.

Company is solely responsible for maintaining the confidentiality of its account and for all actions taken within the account. If Company believes that its account may no longer be secure, Company will immediately notify Friendbuy.

9. Confidentiality.

9.1 As used herein, "Confidential Information" includes all information given to one Party (the "Receiving Party") or its affiliates by the other party (the "Disclosing Party") or otherwise acquired by the Receiving Party, in connection with this Agreement or any Service Order, and all information derived or generated therefrom, including (a) information regarding any of the products of the Disclosing Party, (b) information regarding costs, productivity or technological advances and (c) this Agreement, any Service Order, any Services and any other information in connection therewith.

9.2 The Receiving Party has no obligation to protect the following categories of Disclosing Party information: (a) information that is or was independently developed by the Receiving Party without use of or reference to any of the Disclosing Party's Confidential Information, (b) information that is or was lawfully received from a third party without any restriction on use, or (c) information that becomes or was a part of the public domain through no breach of this Section 10 (Confidentiality) by the Receiving Party.

9.3 Except as otherwise provided below, the Receiving Party shall not disclose the Disclosing Party's Confidential Information to any third party, without the prior written approval of the Disclosing Party, except to personnel, consultants, agents, technical service providers and representatives of the Receiving Party or its affiliates who have a need to know such information in connection with the Services; provided the Receiving Party shall be responsible for any actions of such Parties that would be in breach of this Agreement if done by the Receiving Party. For the avoidance of doubt, Friendbuy may share Company’s Confidential Information with Friendbuy’s third party vendors such as payment processors as long as those companies are bound by consistent confidentiality terms. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may disclose the Disclosing Party's Confidential Information to the extent such information is required to be disclosed by law, including a subpoena, or to respond to a regulatory request; provided that the Receiving Party promptly notifies the Disclosing Party in writing prior to any disclosure to allow the Disclosing Party to seek a protective order or similar relief in the Disclosing Party's sole discretion.

9.4 The Receiving Party shall (a) use at least the same degree of care that the Receiving Party uses to protect its own proprietary information of a similar nature and value, but no less than reasonable care to protect and maintain the Disclosing Party's Confidential Information and (b) as requested by the Disclosing Party, return or destroy all of the Disclosing Party's Confidential Information in the Receiving Party's possession or control. Nothing in this Section 9.4 shall require the destruction or alteration of computer back-up tapes or similar storage made in the ordinary course of the Receiving Party's business that contain the Disclosing Party's Confidential Information, provided that Receiving Party shall continue to comply with its obligations herein with respect to such Confidential Information.

9.5 The Receiving Party acknowledges that, except as otherwise provided below, (a) the Disclosing Party is the exclusive owner of and has all rights to its Confidential Information, including all Intellectual Property Rights therein, and (b) no right, title, interest or license to the Receiving Party is either granted or implied under any Intellectual Property Rights by the disclosure of Confidential Information hereunder.

10. Publicity and Marketing.

Neither party will initiate any press release relating to the existence of this Agreement or a party’s performance under this Agreement without the other party’s prior written consent.

11. Intellectual Property.

As between the parties, (a) Company owns all right, title and interest in and to the Company Materials, Company Data, Company Property and Company’s other properties and technology, and any future developments and enhancements thereto, and (b) Friendbuy owns all right, title and interest in and to the Services, the Friendbuy Platform and the Friendbuy Code and any future developments and enhancements thereto. Each party reserves the right to continually evolve its services and technologies. Except as explicitly granted in this Agreement, nothing in this Agreement grants one party any right, title or interest in the other party’s products, services, technologies or intellectual property, and each party reserves all rights. Friendbuy shall not be prohibited from improving its services on the basis of general learning and know-how gained from the provision of Services to Company and Friendbuy's other partners. If Company provides comments, suggestions or other feedback about the Service, Friendbuy Platform or Friendbuy Code (“Feedback”), Friendbuy may use such Feedback without restriction and without any compensation, attribution or accounting to Company. Except to the extent permitted by law, Company may not reverse engineer, decompile, modify, combine, create derivative works of, distribute or adapt the Service, Friendbuy Platform or Friendbuy Code.  Company may not delete any copyright or proprietary notices on the Friendbuy Code and may not share the Services, access to the Friendbuy Platform or the Friendbuy Code with any third party.

12. Suspension and Termination.

12.1 Friendbuy may suspend Company's use of the Service and access to the Friendbuy Platform upon notice if Friendbuy reasonably believes that Company’s continued use of the Service or Friendbuy Platform will cause imminent damage, liability or harm to Friendbuy, Company or the Friendbuy Platform.

12.2 A party may terminate this Agreement immediately if the other party is in material breach, has been given a notice of such material breach, and has failed to cure within thirty (30) days (or five (5) days in the case of failure to pay fees as set forth herein). Upon termination for any reason, Company’s access to and right to use the Service shall immediately terminate. If this Agreement is terminated for Company’s uncured breach, Company will promptly pay any minimum amounts that would have been due for the full duration of the Term of any Service Order as it existed prior to the early termination.

13. Disclaimers.

EXCEPT AS EXPLICITLY SET FORTH IN THE Agreement, Friendbuy provides THE Services, friendbuy platform and friendbuy widget “AS IS” and “AS AVAILABLE.” EXCEPT AS EXPLICITLY SET FORTH IN THE Agreement, FRIENDBUY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NONINFRINGEMENT, COURSE OF DEALING OR PERFORMANCE. COMPANY IS RESPONSIBLE FOR BEING INFORMED OF APPLICABLE LAWS AND ENSURING THAT ITS USE OF THE SERVICE, friendbuy platform and friendbuy widget CONFORMS TO APPLICABLE LAWS. Friendbuy may provide links to other sites AND SERVICES (COLLECTIVELY, "Other Sites") SUCH AS FACEBOOK, MIXPANEL AND OTHERS. Friendbuy DOES NOT CONTROL Other Sites and ACCESS AND USE OF OTHER SITES IS AT COMPANY’S OWN RISK. FRIENDBUY SHALL HAVE NO LIABILITY FOR COMPANY’S USE OF THIRD PARTY INTEGRATIONS. FRIENDBUY’S ACCOUNT CREDIT AS A SERVICE FEATURE IS NOT INTENDED TO CARRY ACCOUNT CREDITS AS A LIABILITY OR HOLD ANY CASH OR CASH EQUIVALENTS FOR COMPANY; COMPANY IS SOLELY RESPONSIBLE FOR ACCOUNTING FOR ACCOUNT CREDITS AND REDEEMING ACCOUNT CREDITS FOR END USERS ON COMPANY PROPERTIES.  FRIENDBUY SHALL HAVE NO LIABILITY FOR ANY ERRORS IN CALCULATION OR REDEMPTION RELATING TO ACCOUNT CREDITS. 

These disclaimers of warranty constitutes an essential part of this Agreement.

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14. Indemnity.

14.1 Friendbuy shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents (and successors, heirs and assigns) (the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Company Parties in connection with any third-party claim that Friendbuy’s proprietary technology that provides the Service, the Friendbuy Platform and/or the Friendbuy Code, in the form provided by Friendbuy, infringes any U.S. patent or other US third party intellectual property right.

14.1.1 Friendbuy shall have no obligation for claims arising from or related to (a) compliance with Company specifications, (b) combination of the Services, Friendbuy Platform or Friendbuy Code with data, materials, products or services not supplied by Friendbuy, where the cause of action would not have arisen but for such combination, (c) adaptation or modification of Services, Friendbuy Platform or Friendbuy Code, where the cause of action would not have arisen but for such adaptation or modification, (d) Company’s failure to follow instructions provided by Friendbuy which would have cured the cause of action, provided that following such instructions would not have caused Company substantial additional cost, (e) use of the Services, Friendbuy Platform or Friendbuy Code other than as described in the Service Orders, or (f) Company’s continued use of a version of the Services, Friendbuy Platform or Friendbuy Code other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used. If any of the subsections above apply, Company will indemnify, defend and hold harmless the Friendbuy Parties (defined below) from and against any Liabilities arising from such claims.

14.1.2 If the Services, Friendbuy Platform and/or Friendbuy Code are held in a suit or proceeding to infringe any intellectual property rights or other rights of a third party, or Friendbuy reasonably believes that it is likely to be found to do so, then Friendbuy may, at its sole cost, expense and option, either (a) procure the right to continue using such Services, Friendbuy Platform or Friendbuy Code, or (b) modify such Services, Friendbuy Platform or Friendbuy Code so that it becomes non-infringing without affecting the basic functionality of such Services; provided, however, that if (a) and (b) are not practicable, Friendbuy may, in its sole discretion, terminate this Agreement with respect to such Services, Friendbuy Platform or Friendbuy Code by giving Company thirty (30) days written notice, upon which termination Friendbuy shall refund the portion of such pre-payment that reflects the remaining license term. Friendbuy’s obligations as stated in Section 14.1 (including Friendbuy’s obligation to indemnify Company as described above) are Company’s sole remedy and Friendbuy’s sole liability arising out of or relating to such infringement claims.

14.2 Company shall indemnify, defend and hold harmless Friendbuy and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (the “Friendbuy Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Friendbuy Parties in connection with any third-party claim arising out of or relating to (i) Company’s use of the Service, Friendbuy Platform or Friendbuy Code (but not including claims for which Friendbuy is indemnifying Company), (ii) the Company Materials or Company Data, or (iii) Company’s products, services and offers.

14.2 Each party’s indemnification obligations are conditioned upon (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with indemnitor, at indemnitor’s sole cost and expense. The indemnitor shall not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense.

15. Limitation of Liability and Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Except with respect to liabilities arising out of violations of a party’s obligations under section 10 (Confidentiality) or section 7 (Compliance):

(a) neither party shall be liable to the other for punitive, incidental, indirect, special, reliance or consequential damages, including lost business, revenue or anticipated profits, regardless of the cause of action and whether or not the party was advised of the possibility of such loss or damages,

(b) except for INDEMNITY OBLIGATIONS AND Company’s obligation to pay THE minimum fees for the then-current term and for services already provided, in no event will a party’s total cumulative liability under this Agreement exceed the amount paid or owed by Company under this Agreement for the twelve (12) months prior to the date that the cause of action arose, AND

(C) IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER SECTION 15 (INDEMNITY) EXCEED $1,000,000 (ONE MILLION DOLLARS).

These limitations of liability apply even if any remedy specified in this Agreement is found to have failed of its essential purpose.

16. Notices.

To be effective, all notices hereunder must be in writing and either (a) sent by email or (b) delivered personally or by overnight courier, billed to sender or by certified or registered U.S. mail, return receipt requested, postage prepaid (“Physically Delivery”).

Notices sent by email are effective when sent to the billing email address provided in the relevant Service Order for Company and to legal@Friendbuy.com for Friendbuy, provided that the sending party does not receive an error notice and the email includes in the subject line “LEGAL NOTICE.” For the avoidance of doubt, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the email address specified above or any updated email address provided by the other party for the purpose of receiving notices.

Notices provided by Physical Delivery shall be addressed to a party at the following physical addresses:

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To Friendbuy: 

Malaga Cove Plaza

2516 Via Tejon, Suite 201

Palos Verdes Estates, California 90274

Attn: Legal

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To Company:

The Company Authorized Representative shown in Service Order #1

A party may change its email and/or Physical Delivery address for notices by notifying the other party.

17. Relationship of the Parties.

The relationship of the parties established by this Agreement is that of independent contractors and nothing contained herein will be construed to (a) give either party any right or authority to create or assume any obligation of any kind on behalf of the other party or (b) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking. This Agreement constitutes a contract for the provision of Services and not a contract of employment of Friendbuy or any Friendbuy personnel.

18. Force Majeure.

Neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.

19. Choice of Law; Dispute Resolution.

This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles. Any action arising under or related to this Agreement will be resolved (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, California. Any claims arising under or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.

20. Anti-Corruption.

No party shall perform any actions that are prohibited by local and other anti-corruption laws (“Anti-Corruption Laws”) that may be applicable to any party to this Agreement. Without limiting the foregoing, neither party shall make any payments, or offer or transfer anything of value, to any government official or government employee, to any political party official or candidate for political office or to any other third party related to the transaction in a manner that would violate Anti-Corruption Laws.

21. Export.

Company shall not export or re-export, either directly or indirectly, the Services when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval. Friendbuy and Company shall provide the other with all necessary assistance for any application for such authorizations, licenses and other approvals, or other documentation related to the export or re-export of Services.

22. Entire Agreement

This Agreement (a) supersedes all previous understandings, agreements and representations between the parties, written or oral and (b) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and the applicable Service Order, and incorporates all representations, warranties, covenants, commitments and understandings on which they have relied in entering into this Agreement and each Service Order. No modification, change or amendment to this Agreement shall be effective unless in writing and signed by each of the parties.

23. Conflicts.

No terms and conditions of any purchase order, invoice, estimate, confirmation, acceptance or any other similar document in connection with this Agreement will be effective unless expressly stated otherwise in a writing that has been signed by each of the parties. To the extent of any conflict or inconsistency between this Agreement and the provisions of a Service Order, the Service Order shall govern to the extent of the conflict.

24. Headings.

The headings used herein have been inserted for convenience only and do not affect the interpretation of this Agreement.

25. Waiver.

The failure of any party to enforce at any time for any period any provision hereof will not be construed to be a waiver of such provision or of the right of such party thereafter to enforce each such provision, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy.

26. Severability.

Any provision of this Agreement that is invalid or unenforceable will, to the extent the economic benefits conferred thereby to both Parties remain substantially unimpaired, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining provisions or affecting the validity or enforceability of any of such provisions in any other jurisdiction.

27. Survival.

The following sections survive any termination or expiration of this Agreement and any termination or completion of any or all Service Orders: 3.2, 3.3, 5 (until all fees are paid), 6.6, 7, 9, 10, 11, 12.3, 13-17 and 19-29.

28. Representation.

The parties acknowledge and agree that they have been represented in the negotiation and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel.

29. Assignment.

This Agreement and the licenses granted herein are not transferable or assignable without prior written consent of the non-assigning party; provided, however, that either party upon written notice to the other party may assign this Agreement to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise or to an affiliate. Notwithstanding the foregoing, Friendbuy may terminate this Agreement immediately upon notice to Company if Company assigns this Agreement to a Friendbuy competitor.