Orbipay Subscription Agreement

The Alacriti Master Services Agreement is now the Orbipay Subscription Agreement. Alacriti expanded the suite of subscription-based products and services that it offers under the Orbipay brand. To streamline the process via which Alacriti licenses such products and services, Alacriti has replaced the Alacriti Master Services Agreement with the Orbipay Subscription Agreement. Orders that were previously subject to the Alacriti Master Services Agreement are now subject to the Orbipay Subscription Agreement.

Last updated: June 9, 2023

This Orbipay Subscription Agreement (together with any Orders, the “Agreement”), is by and between Alacriti Payments LLC (“Alacriti,” “we,” or “us”) and the legal entity identified in the signature block of an Order or that otherwise accepts an Order (“Client,” or “you”), and is effective as of the date of acceptance of that Order (the “Effective Date”). Alacriti and Client are each referred to individually as a “party” and collectively as the “parties.”

Alacriti provides certain subscription-based digital payment and money movement services, related data, technology and analytics services, configuration and implementation services, and other business services, including those services more expressly set forth in an order form that is signed or otherwise accepted by both parties (or, in the case of Alacriti, by an authorized reseller on Alacriti’s behalf), and references this Agreement (such order forms are “Orders,” and such services are collectively “Subscription Services”). Client desires to use the Subscription Services pursuant to the terms and conditions of this Agreement.

This Agreement is a legal and binding agreement between Alacriti and you. This Agreement describes the terms and conditions that apply to your use of the Subscription Services. If you do not understand or agree with any of the terms of this Agreement, do not access or use the Subscription Services.

In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions.

Unless otherwise expressly set forth herein, the capitalized terms used in this Agreement have the meanings set forth in this section.

(a) “Applicable Law” means, with respect to a party, all federal, state, local, administrative laws, rules, regulations and interpretations, in either case as applicable to that party’s provision or receipt of Subscription Services.

(b) “Subscription-Specific Terms” means the terms and conditions posted at http://www.alacriti.com/legal/subscription-specific-terms (and any successor or related locations designated by Alacriti), as may be updated by Alacriti from time to time and are incorporated herein by reference.

2. The Subscription Services and Intellectual Property.

(a) Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in the United States are eligible to use the Subscription Services. Subject to the terms and conditions of this Agreement and the applicable Order, including any fees required to be paid by Client to Alacriti: (i) Alacriti will make the Subscription Services available to Client and Clients’ customers (“Customers”) during the term of the applicable Order; and (ii) to the extent Client is required to download or integrate any software which is proprietary to Alacriti (the “Software”) for use in connection with the Subscription Services (the “Permitted Purpose”), Alacriti grants to Client a limited non-exclusive, non-assignable, non-transferable, non-sublicensable license to access and use the Software, during the term of the applicable Order, solely for the Permitted Purpose. Alacriti retains ownership of the Subscription Services and Software, all improvements and enhancements thereto, and all intellectual property therein. Client and its Customers receive no rights or licenses to the Subscription Services or Software except for those set forth in this paragraph. All rights not expressly granted to a party hereunder are reserved. Client is responsible for and will be liable to Alacriti pursuant to this Agreement for the actions and/or omissions of its Customers, as if they were Client’s own.

(b) Alacriti may use all comments, suggestions, or other feedback relating to the Subscription Services or Software (collectively, “Feedback”) that are provided by Client, without restriction. Client irrevocably assigns to Alacriti all right, title, and interest in and to the Feedback and agrees to provide Alacriti any assistance it requires to document, perfect, and maintain its rights in the Feedback, at Alacriti’s expense.

(c) Client shall not (and shall not authorize or permit its employees, agents, independent contractors, Customers, or any other person or entity to): (i) modify or create derivative works of the Subscription Services or Software; (ii) distribute, re-sell, or sublicense the Subscription Services or Software; (iii) decompile, disassemble, or reverse-engineer any portion of the Subscription Services or Software, or otherwise attempt to derive their source code or protocols; (iv) use the Subscription Services or Software as part of a time-sharing or service bureau arrangement; or (v) remove, modify, or obscure any proprietary notices included on the Subscription Services or Software.

(d) Client retains ownership of all materials it furnishes to Alacriti in connection with this Agreement (“Client Materials”). Client warrants to Alacriti that it has obtained all right, consent, and authority necessary for Alacriti to use the Client Materials as set forth in this Agreement. Client grants Alacriti and its service providers a worldwide, royalty-free, non-exclusive, non-transferable (except as part of a permitted transfer of this Agreement) license during the Term to use, copy, and creative derivative works of the Client Materials to provide Subscription Services.

(e) Client acknowledges that Alacriti is entitled to injunctive relief for any breach or threatened breach of this section, without the necessity of Alacriti showing actual money damages or posting a bond. Such injunctive relief shall not preclude Alacriti from pursuing any other remedies available to it, including the recovery for damages sustained it is able to prove or for the cost of the action, including reasonable attorneys’ fees.

3. Client Fees; Taxes

(a) Client shall pay Alacriti the fees and charges set forth in the applicable Order (“Fees”). All Fees and other fees payable under this Agreement to Alacriti or a third party that contain a fraction of a cent will be rounded up to the next full cent. Except as otherwise set forth in the applicable Order, Alacriti shall invoice Client for Fees annually in advance, and all invoices are due and payable by Client not later than thirty (30) days after the date of the invoice. An invoice is deemed correct unless Client otherwise notifies Alacriti in writing within fifteen (15) days of the invoice date, specifying the nature of the disagreement. Client shall maintain an active business bank account (“Account”) and ensure such Account has, throughout the Term, sufficient cleared funds to meet its obligations under this Agreement. Client irrevocably authorizes Alacriti to debit and/or credit the Account via ACH to settle any and all fees and other amounts due to Alacriti under this Agreement. All amounts due to Alacriti under this Agreement must be paid without set-off or deduction. Any Fees not collected from Client by Alacriti when debiting the Account or otherwise past due shall bear interest at one and a half percentage (1.5%) point per month but in no event more than the highest rate permitted by law.

(b) Client is obligated to pay all taxes, fees and other charges imposed by any governmental authority (“Taxes”), including any value added tax, goods and services tax, provincial sales tax and/or harmonized sales tax on the Subscription Services. If Client is tax-exempt, it will provide Alacriti with an appropriate certificate or other evidence of tax exemption that is satisfactory to Alacriti. The Fees are exclusive of any applicable Taxes. Client has sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of its products and services, acceptance of donations, or payments it receives in connection with the Subscription Services; and (ii) assessing, collecting, reporting, and remitting Taxes for Client’s business to the appropriate tax and revenue authorities. If Alacriti is required to withhold any Taxes, or it is unable to validate any tax-related identification information Client provide to it, Alacriti may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. Upon Alacriti’s reasonable request, Client will provide Alacriti with information regarding Client’s tax affairs.

(c) Except as set forth in the applicable Order, all Fees are subject to an annual increase, not to exceed the greater of five percent (5%) or the increase in the Consumer Price Index for Urban Consumers, as issued by the Bureau of Labor Statistics, U.S. Department of Labor, over the immediately preceding twelve (12) month period.

4. Client’s Responsibilities.

(a) In addition to Client's obligations set forth elsewhere in this Agreement, Client shall, throughout the Term: (i) comply with the Subscription-Specific Terms; (ii) maintain a direct contractual relationship with each of its Customers that uses the Subscription Services, which contractual relationship is at least as protective of Alacriti and the Subscription Services as this Agreement; (iii) be solely responsible to (A) enable Customers to receive the Subscription Services through Alacriti's platform; (B) identify and obtain from Customers all authorizations and consents related to use of the Subscription Services; (C) identify and provide to Customers all notices related to use of the Subscription Services, that are required either contractually or by Applicable Law; (D) verify Customer identification; (E) comply with all contractual and other obligations of Client owed to Customers; (F) determine, and comply with, all Applicable Law relating to whether and how the Subscription Services may be used by Client; and (G) determine, and ensure that Customers comply with, all Applicable Law relating to whether and how the Subscription Services may be used by Customers; and (iv) be solely responsible to ensure the accuracy and completeness of all data, and other information, instructions, and representations supplied by Client to Alacriti in connection with this Agreement.

(b) Client represents and warrants to Alacriti that all information it provides to Alacriti in connection with the Subscription Services is accurate and complete, and Client will provide Alacriti with timely written notice of any changes to such information.

5. Privacy Policies.

Client will ensure that it delivers its products and services to Customers, in accordance with applicable privacy laws, rules, and regulations, including industry self-regulations and the General Data Protection Regulation (if applicable) (“Privacy Laws”). Alacriti may have the Customer accept an Orbipay Privacy Policy as part of registering for or using the Subscription Services (“Orbipay Privacy Policy”). Alacriti shall ensure that the Orbipay Privacy Policy complies with all applicable Privacy Laws. Client acknowledges and agrees that Alacriti may process data relating to a Customer’s use of the Subscription Services, as set forth in the Orbipay Privacy Policy. To the extent that Client provides Alacriti with any information about Customers, Client shall obtain all consents necessary from such Customers to provide such information to Alacriti and for Alacriti to process such information to provide Subscription Services.

6. Fraud and Risk Reviews.

(a) Client acknowledges that Alacriti will continuously monitor Client’s use of the Subscription Services for the purpose of identifying suspicious activity, to prevent, detect and deter fraud and abuse of the Subscription Services, and to protect the integrity of its systems and business. Client further acknowledges that as a result of such monitoring Alacriti may require additional due diligence (including information on the Client’s products and services, Client financial statements, and additional information on Customers) with respect to Client to ensure Client continues to be eligible for the Subscription Services. Alacriti may suspend or terminate the Subscription Services immediately and may withhold amounts owed to Client in the event that: (i) Client becomes ineligible for the Subscription Services, (ii) Alacriti reasonably suspects Client has violated Applicable Law, or (iii) Client does not furnish the requested information in a timely manner.

(b) Client further authorizes Alacriti (or its affiliate or agent) to from time to time request a credit report on Client from a credit reporting agency. In accordance with the U.S. Fair Credit Reporting Act, such consumer report(s) will be used to review Client’s account to determine whether Client continues to meet the terms and conditions related to the Subscription Services. Alacriti reserves the right to terminate, suspend, or limit access to the Subscription Services based upon Alacriti’s review of such consumer report(s), and/or in the event Alacriti is unable to obtain or verify any of Client’s information. In the event that Client’s access to the Subscription Services are so terminated, suspended, or limited based upon information contained in a consumer report, Alacriti will notify Client in accordance with Applicable Law.

7. Term.

Unless terminated earlier as permitted herein, this Agreement is effective as of the Effective Date and continues for so long as there as an Order in effect between the parties (the “Term”).

8. Termination; Modification; Suspension.

(a) Either party may terminate this Agreement or an Order, without penalty, for cause on written notice to the other in the event of a material breach of this Agreement or the Order (as applicable) by the other party, which remains uncured thirty (30) days after notice thereof by the non-breaching party. The notice of termination shall detail the reason for such termination. Notwithstanding the foregoing or anything to the contrary otherwise contained in this Agreement, Alacriti may terminate this Agreement upon fifteen (15) days prior written notice if Client has failed to pay any amount due to Alacriti within the time periods set forth in this Agreement and does not cure such failure within the notice period. Termination of this Agreement will also terminate all then-currently outstanding Orders.

(b) Notwithstanding any term or provisions of this Agreement to the contrary, either party may terminate this Agreement, without penalty, upon thirty (30) days' written notice after the occurrence of any of the following: (i) the commencement of proceedings in bankruptcy, or for reorganization of the other party, or for the readjustment of any of the debts of the other party under the applicable Bankruptcy Code, as amended, or any part thereof, or under any other laws, for the relief of debtors, now or hereafter existing, by either party or against either party, which is not dismissed within thirty (30) days; (ii) the appointment of a receiver, trustee or custodian of the other party, or for any substantial assets of the other party, or the institution of proceedings for the dissolution or the full or partial liquidation of the other party, which is not dismissed within thirty (30) days; or (iii) the other party ceasing to conduct its business in the ordinary course.

(c) Alacriti may terminate this Agreement immediately upon written notice if (i) the processes by which Alacriti provides the Subscription Services are deemed or could reasonably be deemed to violate or be in violation of any Applicable Law; (ii) it reasonably appears to Alacriti that the Subscription Services are being used by Client or Customers for inappropriate, illegal, or improper purposes or that to continue to provide the Subscription Services to Client or Customers would present an unacceptable business risk to Alacriti; (iii) if information supplied by Client is false, inaccurate or incomplete; or (iv) Alacriti deems Client to be financially insecure.

(d) When Alacriti reasonably determines that it is necessary to protect the integrity of the Subscription Services or its operations, to avoid harm to others, or for any other bona-fide reason, Alacriti may, without notice or liability: (i) change, suspend or discontinue the Subscription Services, and/or (ii) to impose limits on features or restrict access to any of the Subscription Services. In addition, Alacriti may from time to time without prior notice modify any of the Subscription Services. Alacriti will use commercially reasonable efforts to give Client notice of any such modification that would significantly adversely affect Client’s use of the Subscription Services.

(e) On termination or expiration of this Agreement, all licenses granted by Alacriti under it end and each party shall promptly return or destroy all of the other party’s Confidential Information in its possession or control, except for copies residing in a party’s electronic archives created in the ordinary course of business or as otherwise necessary to comply with Applicable Law. Sections 2(b), 2(c), 2(d), 3, 8(e), 10, 11, 12, 13 (for a period of three (3) years), and 14 survive termination or expiration of this Agreement.

9. Warranties.

(a) Each party represents and warrants to the other party that: (i) such party will comply, and will cause its employees and agents to comply with all Applicable Law; (ii) such party is an entity, duly organized, validly existing and in good standing under the laws of the state of its organization; (iii) such party has all necessary power and authority to enter into this Agreement and to perform all of the obligations to be performed by it under this Agreement; (iv) this Agreement has been duly executed and delivered by such party and constitutes the valid and binding obligations of such party, enforceable in accordance with its terms; (v) there is no action, suit or proceeding pending or to such party's knowledge threatened which, if decided adversely, would impair such party's ability to carry on its business substantially as now conducted or which would adversely affect such party's financial condition or operations.

(b) Client represents and warrants to Alacriti that (i) Client has not relied upon Alacriti for advice regarding compliance with Applicable Law; and (ii) Client will independently verify Client’s and its Customers’ compliance with Applicable Law.

(c) Alacriti represents and warrants to Client that the Subscription Services and Software will comply with the description set forth in the applicable Order and Applicable Law.

(d) EXCEPT FOR THE FOREGOING WARRANTY, ALACRITI SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AND SOFTWARE, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SUITABILITY, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ALACRITI DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR SOFTWARE WILL BE ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT CLIENT RECEIVES FROM ALACRITI OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. Exclusion of Certain Damages.

UNDER NO CIRCUMSTANCES WILL ONE OR MORE OF THE ALACRITI PARTIES BE LIABLE TO CLIENT, A CUSTOMER, OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, ARISING FROM OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, EVEN IF ONE OR MORE OF THE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY FINES, FEES, PENALTIES OR ASSESSMENTS IMPOSED BY A THIRD PARTY RELATED TO CLIENT’S ACCEPTANCE OF PAYMENT INSTRUMENTS ARE CONSEQUENTIAL DAMAGES. ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR COMMERCIAL SERVICES. THE UNIFORM COMMERCIAL CODE DOES NOT APPLY AND THE ALACRITI PARTIES HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, MADE TO CLIENT OR ANY OTHER PERSON, REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SUBSCRIPTION SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES.

11. Limitation of Liability.

(a) SUBJECT TO THE EXCEPTIONS SET FORTH IN THE REMAINDER OF THIS SECTION 11, THE CUMULATIVE LIABILITY OF THE ALACRITI PARTIES, IN THE AGGREGATE, ARISING FROM OR RELATED TO THIS AGREEMENT AND ITS SUBJECT MATTER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CLIENT TO ALACRITI UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.

(b) None of the Alacriti Parties will be liable for the acts or omissions of the Client or Customer or any other person or entity, including any clearing house association or processor, any funds transfer system, the Federal Reserve Bank, any other financial institution or any supplier, and no such person or entity will be deemed an agent of any of the Alacriti Parties.

(c) None of the Alacriti Parties are responsible for detecting any errors in the information provided by Client or any Customer.

(d) Client understands and agrees that any form of Customer documentation or disclosures provided to Client by Alacriti in connection with the Subscription Services are provided by Alacriti solely as a courtesy and none of the Alacriti Parties makes any representation or warranty regarding the sufficiency or accuracy of such documentation or disclosures, including whether or not such documentation or disclosures comply with Applicable Law.

(e) The limitations on liability, waivers, indemnities, and other terms and conditions in Sections 10, 11, and 12 of this Agreement are business understandings between the parties and apply to all legal theories of recovery, including breach of contract or warranty, breach of fiduciary duty, tort (including negligence), strict or statutory liability, or any other cause of action, provided that these limitations on liability, waivers and indemnities, and other terms and conditions will not apply to any losses or damages that are found by a trier of fact to have been caused by Alacriti’s gross negligence or willful misconduct.

(f) “Alacriti Parties” means Alacriti Payments LLC, together with its affiliates, and its and their successors and assigns, and its and their vendors, service providers, and suppliers, and each of the foregoing’s officers, directors, employees, and agents.

12. Indemnity.

Client shall indemnify and defend the Alacriti Parties from and against any and all third-party claims, demands, or actions against any of the foregoing arising from: (a) Client’s breach of this Agreement, Subscription-Specific Terms, or Applicable Law; (b) claims by Customers relating to the Subscription Services unless and except to the extent caused by Alacriti’s gross negligence or willful misconduct; (c) information, instructions or data provided by Client or any Customer or potential Customer to Alacriti; (d) claims by Client’s third-party service providers, including gateways, systems, banks, issuers, and card processors, other than claims related to Alacriti’s gross negligence or willful misconduct; (e) Client failure to comply with all Alacriti guidelines, directives, policies, practices, rules and procedures made available to Client or Customer; or (f) chargebacks and other processing losses, including any returns, such as those caused by Client’s or Customer’s error or incorrect information supplied by Client or Customer, insufficient funds in Client’s or Customer’s account, a closed Customer account, and/or failure timely to notify Alacriti of changes in Client’s or Customer’s account (collectively, (a) through (f) “Claims”). In addition, Client shall indemnify and hold harmless the Alacriti Parties from and against all liabilities, losses, fines, costs, expenses (including reasonable attorneys’ fees), damages, awards, settlements, and penalties relating to those Claims.

13. Confidentiality.

(a) A party’s “Confidential Information” is all information regarding that party’s business which has been marked as or is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by the receiving party to be proprietary or confidential information. The receiving party will not use or reproduce the disclosing party’s Confidential Information other than as necessary for the performance of its obligations or exercise of its rights under this Agreement, and will disclose the disclosing party’s Confidential Information only to those of its employees, contractors, and agents who have a need to know such Confidential Information for the receiving party to perform its obligations or exercise its rights under this Agreement. The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care.

(b) The receiving party’s obligations with respect to any of the disclosing party’s Confidential Information will terminate to the extent such information: (i) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (ii) is disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is at the time of receipt, or through no fault of the receiving party has become, generally available to the public; or (iv) is independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. In addition, the receiving party is allowed to disclose the disclosing party’s Confidential Information to the extent that such disclosure is approved in writing by the disclosing party, necessary for the receiving party to enforce its rights under this Agreement, or required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party notifies the disclosing party of such required disclosure promptly (unless prohibited by law) and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

(c) The parties each shall independently ensure that it and its employees, subsidiaries, affiliates, agents and sub-contractors shall observe the provisions of applicable privacy laws and comply with any reasonable request made by the other arising from the requirements of such laws or any applicable statute, law or regulation relating to protection of personal data in any jurisdiction.

(d) If either party becomes aware of any disclosure or use of the other party’s Confidential Information in violation of this section, it shall promptly notify the other party in writing and take all reasonable steps necessary to recover the disclosed information and to prevent its subsequent unauthorized use or dissemination.

14. Miscellaneous.

(a) Neither party shall make any public announcement or disclosure relating to the other party, the terms of this Agreement or its performance hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. However, Alacriti may include Client in Alacriti’s customer lists appearing on Alacriti’s website and in other marketing material.

(b) As used in this Agreement, “including” or “includes” means “includes or including (as applicable), but not limited to.

(c) This Agreement is governed by and construed in accordance with the laws of State of New Jersey, without giving effect to its conflicts of law principles. The parties agree that the exclusive jurisdiction and venue of any litigation arising out of or relating to this Agreement is the district court within and for Middlesex County, New Jersey, or if jurisdictional requirements are otherwise met, the United States District Court for the District of New Jersey. Each of the parties hereby waives a jury trial and the defense of an inconvenient forum.

(d) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements, promises, representations, understandings and negotiations between the parties, whether written or oral, with respect to such subject matter.

(e) This Agreement and the rights and obligations expressed in this Agreement shall not be abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession by either party to the other party or to any other person or by the exercise by either party of any of its rights hereunder or by any compromise, release, abandonment, waiver, variation, relinquishment or renewal of any rights of either party. Neither party will be deemed to have waived any of its rights, powers or remedies under this Agreement unless the waiving party approves such waiver in writing. Except as set forth in clause (n), no changes to this Agreement will be binding upon the parties unless made in writing and signed by an authorized representative of each party.

(f) If any provision hereof is for any reason determined to be invalid, such provision will be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the parties as herein expressed, and such invalidity shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect.

(g) This Agreement is made solely and specifically between and for the benefit of the parties, and their respective successors and permitted assigns, and no person shall have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.

(h) In any action to enforce the terms of this Agreement or to collect damages for its breach, the prevailing party is entitled to its reasonable attorneys’ fees and all costs and expenses of enforcement through arbitration, appellate and post-award proceedings.

(i) Any notices or other communications required or permitted by Client pursuant to this Agreement must be in writing and delivered either by personal delivery or by nationally recognized overnight courier service, to the attention of “General Counsel” at Alacriti, 100 Somerset Corporate Boulevard, 2nd Floor, Bridgewater, NJ 08807, or to such other address as Alacriti has designated to Client. Any notices or other communications required or permitted by Alacriti pursuant to this Agreement may be in writing and delivered either by personal delivery or by nationally recognized overnight courier service to Client’s address set forth in the applicable Order, or may be electronic via email or posting on the Subscription Services website. Notices will be deemed given: two business days after deposit with overnight courier, if sent by overnight courier; upon delivery, if hand delivered; upon the date of attempted delivery, where delivery is refused; upon delivery, if given by Alacriti via email; and when posted, if given by Alacriti by posting on the Subscription Services website.

(j) Neither this Agreement nor any of the rights or obligations under it may be assigned, delegated, sub-licensed or transferred (by operation of law or otherwise) by either party without the prior consent of the other party, which consent shall not be unreasonably withheld, except that Alacriti may, at its sole discretion, assign its rights or delegate or subcontract performance of its obligations under this Agreement to (i) an affiliate; (ii) any purchaser or transferee of substantially all of Alacriti’s stock or assets and liabilities; or (iii) any other vendor or service provider for which Alacriti remains liable under this Agreement. This Agreement shall inure to the benefit of, and be binding upon, Alacriti and Client and their respective successors and permitted assigns.

(k) Nothing in this Agreement is intended, or will be construed, to constitute or establish a joint venture, partnership or fiduciary relationship between the parties, and no party shall have the right or authority to act for or on behalf of any other party, except as otherwise expressly provided herein. Each party is acting as an independent contractor in the performance of its obligations under this Agreement.

(l) This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which shall constitute one and the same document.

(m) Each party, at its expense, keep in full force and effect insurance policies in such amounts as are reasonably appropriate for purposes of this Agreement, but in no event less than a commercial general liability policy of less than $1 million per occurrence.

(n) Alacriti may modify this Agreement from time-to-time by posting an updated version to this URL. Your continued use of the Subscription Services after the thirty-day anniversary of such posting constitutes your acceptance of such update.

(o) Neither party will be liable for failure to fulfill its obligations under this Agreement if such failure is due to any cause or condition beyond such party’s reasonable control, including natural disaster, acts of God, strikes, fire, floods, war, riots, electrical power failure, communications failure, and decrees of government bodies. This clause does not affect or excuse Client’s financial obligations or liabilities.