Last Updated: May 11, 2017
1. CONTRACTUAL RELATIONSHIP
Your access and use of the Services constitute your agreement to be bound by these Terms, which establishes a contractual relationship between you and Stonewood. By signing up to use the Services, you agree that we may charge your credit card or other agreed upon means of payment for the fees for the Services on a monthly, annual or otherwise basis unless this Agreement is terminated as allowed hereunder. Unless otherwise terminated as allowed herein, the term will automatically renew for successive one-year periods. If you do not agree to these Terms, you may not access or use the Services or any Materials. These Terms expressly supersede prior agreements or arrangements with you. Stonewood may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Nothing in this agreement shall prohibit Stonewood from having similar agreements with other parties.
These Terms contain an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt out of the agreement to arbitrate (see Section 7 “Dispute Resolution”) no later than 30 days after the date you accept these Terms for the first time. Unless you opt out: (1) you will only be permitted to pursue claims against Stonewood on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive and declaratory relief) on an individual basis.
Supplemental terms may apply to certain Services or Materials, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Stonewood may amend these Terms from time to time. Amendments will be effective upon Stonewood’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services or any Materials after such posting constitutes your consent to be bound by the Terms, as amended.
NO PARTNERSHIP OR AGENCY
Stonewood shall be free to exercise independent judgment as to the time, place, and manner of performing all Services. Nothing in this Agreement shall be construed or held to make either party the partner, joint venture, associate, agent, employer, legal representative or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound.
GRANT OF LICENSE
Subject to your payment of fees when due and your compliance with these Terms, Stonewood hereby grants you a limited, nonexclusive, revocable, nontransferable right to (i) access and use our platform solely in connection with your use of the Services; and (ii) access and use the Materials, in each case solely for your use to support sales to your clients and not to provide to any unrelated provider in the life insurance or retirement savings business or other third party. Any rights not expressly granted herein are reserved by Stonewood.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Stonewood; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
THIRD PARTY SERVICES AND CONTENT
The Materials, all the Services and all rights therein are, and shall remain, the property of Stonewood or its licensors. Neither these Terms nor your use of the Materials or the Services convey or grant to you any rights: (i) in or related to the Materials or the Services except for the limited license granted herein; or (ii) to use or reference in any manner, other than reflecting compliance and property notices, Stonewood, or any third party’s, company names, logos, product and service names, trademarks or services marks or those of Stonewood licensors.
“Confidential Information” means the following information or materials disclosed by Stonewood, by whatever means, including but not limited to in writing, orally, visually, electronically or otherwise, and in whatever form, regardless of whether such information is specifically identified as “confidential”: marketing or training ideas, concepts, and strategies and any materials relating to them, any other information that a reasonable person would believe to be confidential, and any other information that Stonewood labels or designates, or which under the circumstances surrounding disclosure should be treated, as confidential. Confidential Information shall not include any information that: (i) is or subsequently becomes publicly available without breach of any obligation hereunder; (ii) was known prior to Stonewood’s disclosure of such information through no known violation of this Agreement; (iii) became known from a source other than Stonewood which did not involve the breach of an obligation of confidentiality owed Stonewood; or (iv) is independently developed without the use of or access to any Confidential Information of Stonewood.
You shall not directly or indirectly use or disclose any Confidential Information except as permitted in this Agreement without the express written consent of Stonewood. You may disclose Confidential Information when such disclosure is required to satisfy a valid judicial or other governmental order, provided that (i) you notify Stonewood in writing prior to disclosure of Confidential Information, if allowed by law, and (ii) you reasonably assist Stonewood in any attempt to limit or prevent the disclosure of Confidential Information.
No rights to Confidential Information other than those expressly granted are to be implied by this Agreement. All Confidential Information shall remain the property of Stonewood, and Stonewood does not grant any express or implied right or license to with respect to any of Stonewood’s intellectual property. You shall return all originals, copies, reproductions and summaries of any Confidential Information, or certify destruction of such information, at Stonewood’s request.
The restrictions on Confidential Information will be perpetual and will survive the termination of this Agreement or access to the Services.
3. YOUR USE OF THE SERVICES
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). Account registration requires you to submit to Stonewood certain personal information, such as your name, address and email address, as well as at least one valid payment method (through an accepted payment partner). You agree to maintain accurate, complete and up-to-date information in your Account. Your failure to maintain accurate, complete and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Stonewood’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Stonewood in writing, you may only possess one Account.
USER REQUIREMENTS AND CONDUCT
The Services are not available for use by persons under the age of 18. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You are responsible for maintaining all licenses required in any states in which you do business. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience or property damage, whether to any third party provider or any other person. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to, or use of, the Services if you refuse to provide proof of identity.
By creating an Account, you agree that we may send you informational text (SMS) messages as part of the Services. You may opt out of receiving text messages from us at any time by calling (502) 588-7155. You acknowledge that opting out of receiving text messages may affect your use of the Services.
Stonewood may, in its sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a third party provider’s services, subject to any additional terms that Stonewood establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Stonewood; (iii) may be disabled by Stonewood at any time for any reason without liability to Stonewood; (iv) may only be used pursuant to the specific terms that Stonewood establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Stonewood reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Stonewood determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal or in violation of the applicable Promo Code terms or these Terms.
LIMITATIONS ON SERVICES
Stonewood is not responsible for the conduct, whether online or offline, of any user of the Services. Moreover, Stonewood does not assume and expressly disclaims any liability that may result from the use of information provided in connection with the Services. All users hereby expressly agree not to hold Stonewood (or Stonewood’s officers, directors, owners, employees, subsidiaries, other affiliates, successors, assignees, agents or representatives, advertisers, marketing partners, licensors, independent contractors, corporate partners (collectively, “Affiliates”) liable for the actions or inactions of any person, or for any information, instruction, advice or services which originated through the Services, and, to the maximum extent permissible under applicable law, Stonewood and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims and/or controversies that have arisen or may arise, whether known or unknown therefrom.
NETWORK ACCESS AND DEVICES
You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and applications and any updates thereto. Stonewood does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
In order to protect our users from prohibited activity, we reserve the right to take appropriate actions, including but not limited to restricting the information a user may view or the amount of emails a user may send to an amount which we deem appropriate in our sole discretion. Further, in order to protect the integrity of the Services, Stonewood reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Services.
Should Stonewood find that you violated these Terms, Stonewood reserves the right, at its sole discretion, to immediately terminate your use of the Services.
USER PROVIDED CONTENT
Stonewood may, in its sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Stonewood through the Services textual, audio and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Stonewood, you grant Stonewood a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to transfer or sublicense, and to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Stonewood’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Stonewood the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Stonewood’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree that you will not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful or otherwise offensive, as determined by Stonewood in its sole discretion, whether or not such material may be protected by law. Stonewood may, but shall not be obligated to, review, monitor or remove User Content, at its sole discretion and at any time and for any reason, without notice to you.
Stonewood does not assume any responsibility for the accuracy or reliability of any information provided by users in connection with the Services.
4. PAYMENT; TERMINATION
You understand that use of the Services will result in charges to you for the Services as provided herein. You are responsible for paying and reporting all applicable taxes (including local, state and federal). Fees paid by you to Stonewood are final and non-refundable, unless otherwise determined by Stonewood.
If your Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Stonewood may restrict or block further use of the Services by you.
Stonewood may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the fees applicable to you.
After your initial annual or monthly subscription, you may terminate the Agreement upon thirty (30) days’ prior written notice. The Agreement will automatically renew for successive terms, unless either party gives thirty (30) days’ notice of termination. Stonewood may terminate this Agreement at any time on thirty (30) days’ notice.
Either party may terminate this Agreement immediately for any material breach of its terms that remains uncured for thirty (30) days after the provision of notice to the breaching party by the non-breaching party; provided however that Stonewood may immediately terminate access to the Services upon failure to pay any fees due or in the event of your misuse of the Services or mis-appropriation of any of the Materials.
EFFECT OF TERMINATION
Upon the expiration or termination of this Agreement for any reason, you must cease using the Materials and all Services and return any confidential information of Stonewood.
5. LINKS TO EXTERNAL SITES OR SERVICES
Links to external sites or services not operated by Stonewood (including external sites that are framed by Stonewood) or inclusion of advertisements do not constitute an endorsement by Stonewood of such sites of the content, products, advertising and other materials presented on such sites or of the products and services that are the subject of such advertisements, but are for users’ reference and convenience.
Users access these sites or services at their own risk. It is the responsibility of the user to evaluate the content and usefulness of the information obtained from other sites or services. Stonewood does not control such sites or services, and is not responsible for their content. Just because Stonewood has hyperlinks to such sites or services does not mean that Stonewood endorses any of the material or services, or has any association with their operators.
6. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” STONEWOOD DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, STONEWOOD MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR MATERIALS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. STONEWOOD DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR MATERIALS REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
STONEWOOD SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF STONEWOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STONEWOOD SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF STONEWOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STONEWOOD SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND STONEWOOD’S REASONABLE CONTROL. IN NO EVENT SHALL STONEWOOD’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE HUNDRED U.S. DOLLARS (US $100).
You agree to indemnify and hold Stonewood and its officers, directors, employees, owners and agents harmless from any and all claims, demands, losses, liabilities and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or Materials obtained through your use of the Services; (ii) your breach or violation of any of these Terms; or (iii) your violation of the rights of any third party, including third party providers.
7. DISPUTE RESOLUTION
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity of the Terms or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Stonewood, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Stonewood are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Stonewood otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
ARBITRATION RULES AND GOVERNING LAW
Arbitration will be conducted by a neutral arbitrator by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
To commence an arbitration, a party must complete a short form, submit it to the AAA, and send a copy to the other party. For more information, see the AAA’s claim filing page, http://www.adr.org/fileacase. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive an arbitration claim from you, we may assert any counterclaims we may have against you.
ARBITRATION LOCATION AND PROCEDURE
Unless you and Stonewood otherwise agree, the arbitration will be conducted in Jefferson County, Kentucky. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Stonewood submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
INVALIDITY OF ARBITRATION PROVISION
If a court decides that any term or provision of this arbitration agreement other than as relates to class action or consolidation of claims is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this arbitration agreement shall be enforceable as so modified. If a court decides that any of the provisions relating to class actions or consolidation of claims are invalid or unenforceable, then the entirety of this arbitration agreement shall be null and void. The remainder of the Terms will continue to apply.
You can choose to reject this arbitration agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. The Opt-Out Notice must state that you do not agree to the arbitration agreement and must include your name, address, phone number and the email address(es) used to log into the Stonewood’s account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the arbitration agreement. If you opt out of the arbitration agreement, all other terms of these Terms will continue to apply. Option out of the arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the modification-related provisions above, if Stonewood changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing Stonewood written notice of such rejection by mail or hand delivery to: Stonewood Financial Solutions, 950 Breckinridge Lane, Suite 130, Louisville, Kentucky 40207, Att.: Delphine Evans within thirty (30) days of the date such change became effective, as indicated in the “Last update” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and Stonewood in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
8. OTHER PROVISIONS
CHOICE OF LAW
These Terms are governed by and to be construed in accordance with the laws of the Commonwealth of Kentucky without giving effect to any conflict of law principles, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration agreement provisions. Unless you and we agree otherwise, in the event that the arbitration agreement is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the arbitration agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has risen or may arise between you and Stonewood must be resolved exclusively by a state or federal court located in Jefferson County in the Commonwealth of Kentucky. You and Stonewood agree to submit to the personal jurisdiction of the courts located within Jefferson County, Kentucky for the purpose of litigating all such claims or disputes.
It is Stonewood’s policy to respond to notices of alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”). If you believe any materials accessible on or from our Services infringe your copyright, you may request removal of those materials (or access thereto) from the Services by contacting Stonewood’s copyright agent (identified below) and providing the following information:
Stonewood agent for copyright issues relating to the Services is as follows:
Stonewood Financial LLC
950 Breckinridge Lane, Suite 130
Louisville, Kentucky 40207
Phone: (502) 588-7155
In an effort to protect the rights of copyright owners, Stonewood maintains a policy for the termination, in appropriate circumstances, of users of the Services who are repeat infringers.
Stonewood may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Stonewood, with such notice deemed given when received by Stonewood, at any time by first class mail, prepaid postage to: Stonewood Financial Solutions, Attn: President, 950 Breckinridge Lane, Suite 130, Louisville, Kentucky 40207.
You may not assign these Terms without Stonewood’s prior written approval. Stonewood may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Stonewood’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Stonewood or any third party provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Stonewood’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Stonewood in writing.
This Agreement sets forth all promises, covenants, agreements, conditions and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior, contemporaneous or oral agreements and understandings, letter agreements, inducements or conditions, express or implied, oral or written, except as contained in this Agreement.
NO WAVIER OF BREACH
No waiver of any breach of any provision of this Agreement shall operate as a waiver of any subsequent breach of that or any other provision of this Agreement. However, the non-breaching party may nevertheless accept payment or performance from the breaching party without waiving its right to enforce any rights or pursue any remedies provided for by this Agreement or otherwise with respect to the breach. This Agreement shall be construed against the finding of an implied waiver of breach.
This Agreement shall inure to and be binding upon the parties, their heirs, executors, administrator, trustees, receivers, successors and assigns.
Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified. Each affiliate is expressly made a third party beneficiary of this Agreement and may enforce these Terms directly against you. These Terms will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.