Software License Agreement (Service Provider Edition)

If you want to obtain a license to use our Service Provider Edition software and/or subscribe to our services, read the terms of this agreement ("Agreement") carefully. Indicate your acceptance of these terms by selecting the "Agree" button at the end of this Agreement and if you do not agree to all of the terms of this Agreement, select the "Decline" button at the end of this Agreement and do not download, access or use the Software.

If you have separately agreed (in writing) to license terms for your license to this Software, then the terms of such written agreement shall override this Agreement and the said written agreement shall govern your use of the Software.

1. Scope of the Agreement

1.1. This Agreement sets forth the terms upon which you may (i) license the Evaluation Version of the Software in order to evaluate it and/or (ii) license the Software to provide data backup Services to your Customers.

2. Definitions

2.1. In this Agreement, "you" means the legal entity (more particularly identified in the partner application form) that has entered into this Agreement with Private Limited by accepting the terms hereof and "Licensor" means Private Limited, a company incorporated in India and having it's registered office at Office A, II floor, 209, Velachery Main Road, Velachery, Chennai - 600042, India. You and the Licensor may each be referred to individually as a "party" or collectively as "the parties" in this Agreement.

2.2. "Backup Server" means your server where the Software is installed in Server mode and onto which Customer Data is backed up as part of your Data Backup Services.

2.3. "Client Software" means the component of the Software in binary object code form which is to be installed in the Customer's server / computer devices as permitted by your Package to enable the Customer to access and use the functionality of the Software.

2.4. "Customer" means an individual or legal entity that obtains Data Backup Services from you.

2.5. "Customer Agreement" means the contract between you and a Customer under which you provide Data Backup Services to such Customer.

2.6. "Data Backup Services" means the data backup services that you provide to your Customers by making the Software functionally available to your Customers.

2.7. "Evaluation Version" is the version of the Software that is provided to you without charge in accordance with the terms hereof.

2.8. "MCAL" is the unit by which the Licensor measures your use of the Software. For details of the number of MCALs you will use when you install or use the Software in the production environment, please refer to the pricing and licensing section in your Partner Zone account.

2.9. "Node" shall mean a device with an operating system where the Software, or any part of the Software, is installed.

2.10. "Partner Zone" is an online resource provided to you by the Licensor on its Website to enable you to manage your license requirements.

2.11. "Permitted Purposes" means the purposes for which you are permitted to use the Software as detailed in your Package.

2.12. "Package" means the package of services you have subscribed to under this Agreement. The Package will include the details of the Software licensed to you, your systems requirements, your Permitted Purposes, the fees payable by you, the MCALs credited to your account, the branding services made available to you and the terms of the support services you are eligible for. The terms of your Package as available at the Partner Zone shall be deemed to be part and parcel of this Agreement.

2.13. "Replication Server" means your server where the Replication Server Software is installed and onto which you may back up your Backup Server.

2.14. "Server Software" shall include the following software components:

2.14.1. The " Backup Server Software" in binary object code form which is to be installed in backup server mode to enable the provision of Date Backup Services, and

2.14.2. The " Replication Server Software" in binary object code form which is to be installed in replication server mode to enable replication of the data on a Backup Server.

2.15. "Software" means the Licensor's Service Provider Edition together with its documentation identified in your Package that you may license under this Agreement to provide Data Backup Services to your Customers. The Software includes Server Software and Client Software. The term Software also includes any evaluation version of the Software and any updates, bug fixes or patches to the original Software provided to you under this Agreement at no additional cost.

2.16. "Website" shall mean the Licensor's website at vembu.com, storegrid.com and storegrid.net.

3. Grant of License for Evaluation

3.1. Subject to the terms and conditions of this Agreement, the Licensor grants to you a non-exclusive, non-transferable and limited right to use the Evaluation Version of the Software in binary object code form, for trial and evaluation of the performance of the Software. This license is valid for a period of thirty (30) days from the date of your download or installation of the Evaluation Version, whichever is earlier ("Evaluation Period"). If you want to use the Evaluation Version beyond the Evaluation Period or if you want to use Software to provide Data Backup Services to your Customers, you have to purchase licenses for the same in accordance with the terms of this Agreement. If you do not purchase licenses to use the Software (any version) beyond the Evaluation Period, you should stop using the Software (all versions) and / or its functionality and delete all the copies of the Evaluation Version installed in your computer/s forthwith on the expiry of the Evaluation Period. Subsequent downloads of the Evaluation Version by or for you does not extend, renew or otherwise restart the term of the license for the Evaluation Version granted herein.

4. Grant of License to Provide Services

4.1. Subject to the terms and conditions of this Agreement and your Package, the Licensor grants you a non-exclusive, terminable, non-transferable, worldwide and limited right to use the Software for the Permitted Purposes in order to provide Data Backup Services.

4.2. Your right to use the Software in accordance with the rights granted to you under this Agreement is limited by the number of MCALs you have purchased and the number of MCALs remaining unutilized in your account at the Partner Zone and your Backup Server.

4.3. The license and rights granted to you under this Agreement will automatically terminate upon expiration or termination of this Agreement.

5. Permitted Use and Restrictions

5.1. The Permitted Purposes for which you may use the Software will be as selected by you and mentioned in your Package. You may use and permit the use of the Software only as expressly permitted in your Package and not in any other manner.

5.2. Activation of the Software will require MCAL license keys. MCAL licenses will be credited to your Partner Zone account after your purchase of the licenses. The MCAL license keys generated are for use only on a single Backup Server identified at the time of your generating the MCAL license keys from the Partner Zone.

5.3. An MCAL license key is for one-time use and should not be reused once a key is applied and utilized. You will not in any way attempt to circumvent any mechanism as may be used by the Licensor from time to time to prevent reuse of MCAL keys.

5.4. You acknowledge and agree that to ensure that use of the MCAL license keys is as described above in clause 5.1, 5.2 or 5.3, each time you use the Software, the Licensor may track the number of Customers backing up to the Backup Server, the MCAL units consumed by the Backup Server and other relevant details for tracking your use of the Software. If the Licensor finds that you have violated the terms of use of the Software as permitted herein, the Licensor reserves the right to forthwith terminate this Agreement and your use of the Licensor's services.

5.5. You may copy or install the Software or any part thereof only on such Nodes as specifically permitted in your Package.

5.6. The copy of the Software provided to you under this Agreement is licensed to you and nothing contained in this Agreement transfers any ownership rights in the Software or any part thereof to you. The Licensor reserves all rights not expressly granted to you including all rights in the source code for the Software.

5.7. You may not rent, lease, sell, transfer, publish, make available or distribute the Software or its functionality to any third party except as expressly permitted by this Agreement.

5.8. You may not export the Software or any part thereof or allow its use in any country that does not have intellectual property laws that will protect the rights of the Licensor in the Software.

5.9. You may not disassemble, decompile, unlock, decode, reverse-engineer or reverse translate the Software or otherwise take any action to recreate or discover the equivalent of the Software.

5.10. You may not alter, adapt, translate, enhance, customize or otherwise modify the Software.

5.11. You may not combine the Software or any portion thereof with any other software, source codes, data, databases or technologies save as may be expressly provided for by this Agreement.

5.12. You may not make copies of the Software or allow copies of the same to be made by others except as specifically permitted by this Agreement.

5.13. You may not attempt to bypass or circumvent the security procedures applicable to the Software or prevent or restrict in any manner any automated software updating services installed in the Software.

5.14. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on / during the use of the Software. This Agreement does not grant you any rights to any trademarks, logos or service marks of the Licensor.

5.15. The Software contains programs that collect data about use of the Software on all Nodes. You agree that the Licensor may collect such data about use of the Software and that the data collected through such programs may be used by the Licensor to monitor your compliance with the terms of this Agreement, to provide you with support services and/or to improve the Software. You agree that you will not prevent or in any manner restrict the right to the Licensor to collect such data about use of the Software.

5.16. Portions of the Software include software with open source licenses from third parties that govern the use of those portions. Nothing contained herein limits the rights and obligations you may have under such open source licenses. However, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to the Software as a whole. For details of the open source software included in the Software and the terms of the license for the same, please refer http://storegrid.vembu.com/online-backup/open-source-license-agreement.php.

6. Your Account at the Partner Zone

6.1. On your acceptance of this Agreement, the Licensor will create an account for you at the Partner Zone. As and when you purchase licenses for the Software, the Licensor will credit the MCALs purchased by you into your account.

6.2. To access your account at the Partner Zone, the Licensor will provide you with a password. When you access your account for the first time, you will be prompted to change the default password provided to you by the Licensor. You shall be solely responsible for safeguarding the security and confidentiality of the user name and password for your account. If you lose your password, you will not be able to access your account or use the Software. You shall be solely responsible for all actions initiated using your user name and password. If you become aware of any unauthorized use of your user name or password, you may notify the Licensor of the same by e-mail addressed to storegrid-partner@vembu.com with the title "Unauthorised Use of User Name / Password". The Licensor will not be liable for any loss or damage arising from your failure to maintain the security and confidentiality of your user name and / or password.

7. Support Services

7.1. If your Package does not entitle you to the premium paid support services provided by us, you will be entitled to receive our standard support services.

7.2. You will be eligible to receive our standard support services for as long as you have unutilized MCALS to your credit in your Partner Zone account or on your identified Backup Server.

7.3. Our standard support services entitle you to receive bug fixes and updates that are provided to all our partners generally, free of charge. We will provide you with support services by e-mail. We will respond to any request for support from you within one (1) business day from receipt of your request for standard support services. The response time guaranteed only applies for the initial response where best effort will be made to provide the solution to the issue. There is no guarantee that the issue reported would be resolved within the response time specified.

7.4. If your Package entitles you to receive premium paid support services, the terms and conditions of such support plan can be found at the Premium Support Plans section in your Partner Zone account.

7.5. You will provide commercially reasonable support to your Customers as per the terms of your agreement with your Customers. The Licensor shall not be responsible for the provision of any support services to your Customers.

8. Compliance with Laws

8.1. You will comply with all applicable international and national laws that apply to the Software particularly those that are applicable in the geography in which you use the Software and / or provide the Data Backup Services.

9. Subscription Fees

9.1. You agree to pay to the Licensor subscription fees as per the fee schedule and payment plan contained in your Package. The Licensor reserves the right to revise the fees from time to time. Such revised prices shall be applicable for the subscription to any new or further rights / licenses purchased by you after the date on which such revised prices are published on our Website.

9.2. The subscription fee is exclusive of applicable taxes and such taxes shall be borne by you.

9.3. All payments shall be made by credit card, cheque or wire transfer. The Licensor reserves the right to modify the mode of payment acceptable to it from time to time.

9.4. The Licensor will credit MCALs you are eligible to receive as per your Package in your account at the Partner Zone on receipt of the subscription fee from you.

10. Customer Agreements

10.1. When you provide Data Backup Services to your Customers, you will incorporate into your Customer Agreements and the end user license agreements for the Software, terms and conditions as mentioned in your Package.

10.2. Notwithstanding anything contained in this Agreement, your Customer Agreement shall contain, at the minimum, terms substantially similar to, and in any event no less restrictive than the terms of this Agreement relating to the protection of the Licensor's intellectual property, warranty, limitation of liability and shall specifically state that support services are provided to the Customer by you and not by the Licensor. Your Customer Agreement shall also provide for a right to audit and/or monitor use of the Software at Customers Nodes along the lines as prescribes in this Agreement.

10.3. You do not have the right to make any warranties or promises to any Customer regarding the Software that are not contained in this Agreement and should you make any warranties or promises contrary hereto, the Licensor shall not be responsible for the same to you or any third party.

10.4. You will be liable to the Licensor for any unauthorized installation, use, copying, access or distribution of the Software by a Customer if you fail to incorporate into your Customer Agreements as required the terms and conditions as required in your Package.

10.5. If the Licensor believes that any Customer is violating the terms of the license to the Software or is acting in a manner detrimental to the rights of the Licensor in the Software, you agree to co-operate with the Licensor in investigating and remedying such non-compliance.

10.6. Upon termination of a Customer Agreement, you use all commercially reasonable efforts to remove all copies of the Software from the Customer's Nodes or to render the same unusable forthwith.

11. Audit Rights

11.1. The Licensor shall have the right to audit (either by itself or through its authorized representative), the use of the Software by inspection of all Nodes. Such inspection shall be solely to the extent necessary to verify that the Software has been used in compliance with the terms of this Agreement. The Licensor shall provide you with notice of its intention to undertake an audit atleast thirty (30) days in advance. During such inspection the Licensor or its authorized representative will comply with all reasonable security and confidentiality requirements of the site where the Nodes are located and shall conduct the audit in a manner that does not unreasonably disrupt the operations at the site.

11.2. If on inspection you are found to have violated the terms of this Agreement, you shall forthwith promptly order sufficient MCALs to cover any shortfall. You shall also bear the cost of the audit and in addition, you shall also be liable to pay the Licensor liquidated damages at the rate of USD 500 per Node where the Software or any part of it has been used in violation of this Agreement. This amount of liquidated damages represents a genuine pre-estimate of the loss, which it is anticipated that the Licensor would suffer as a result of your failure to comply with the terms of this Agreement. This payment does not limit other possible rights of the Licensor including right to terminate this Agreement.

12. Confidentiality

12.1. All information and data disclosed by one party to the other party pursuant to this Agreement including but not limited to the Software, trade secrets, the terms of this Agreement and the Package is and shall remain the proprietary and confidential information of the disclosing party ("Confidential Information").

12.2. Each party agrees to maintain the Confidential Information of the other in confidence and to use or disclose such Confidential Information only as permitted by this Agreement unless otherwise permitted in writing by the disclosing party.

12.3. Each party will take all reasonable precautions to maintain the confidentiality of the Confidential Information of the other, including without limitation, requiring employees and others with access to the Confidential Information to sign confidentiality agreements and limiting access to the Confidential Information to employees on a "need to know" basis.

12.4. A party will immediately notify the other upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate in any reasonable way to help the other party regain possession of the Confidential Information and prevent further unauthorized use.

12.5. Confidential Information shall not include:

12.5.1. information which at the time of disclosure is in the public domain;

12.5.2. information which after disclosure is published or otherwise becomes part of the public domain through no fault of the receiving party or its employees or agents;

12.5.3. information which the receiving party can document through written records, dated prior to the time of disclosure, as having been in the receiving party's possession and belonging to it at the time of disclosure;

12.5.4. information which the receiving party can document was developed independent of and without any reliance / access to the Confidential Information of the disclosing party; or

12.5.5. information which the receiving party can show as having been received after the time of disclosure by the receiving party from a third party without any obligations of confidentiality.

12.6. The obligation of confidentiality shall survive termination or expiry of this Agreement and shall be binding on the parties for a period of five (5) years from such termination / expiry.

13. Warranty

13.1. The Licensor warrants that it holds all right, title and interest in and to the Software or that it is otherwise entitled to provide the Software to you on the terms contained herein.

13.2. The Licensor warrants that the Software, when it is delivered to you, is free of viruses, Trojan horses, worms, and other similar destructive or disabling code.

13.3. THE ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY LICENSOR. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK.

13.4. THE LICENSOR EXPRESSLY DISCLAIMS AND YOU HEREBY EXPRESSLY WAIVE ALL OTHER CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED.

13.5. THE LICENSOR'S ABOVE LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE SOFTWARE. THE SOFTWARE'S FAILURE TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE WARRANTIES CONTAINED HEREIN.

14. Indemnity

14.1. Subject to the terms of this Agreement, you agree to indemnify and hold harmless the Licensor, its employees, directors and agents for any damages, legal fees and costs arising from or as a result of the violation of any of the terms of this Agreement.

14.2. Licensor will, at its expense, defend any claim brought against you or your officers, directors, employees or agents and indemnify all of them against any liability for damages awarded in any such action, insofar as the same is based on a claim that the Software infringes any copyright or other intellectual property of a third party. If the Software is found to infringe any copyright of a third party, Licensor shall:

14.2.1. secure a license from such third party to allow your continued use of the Software,

14.2.2. cure the Software of any infringing elements, or

14.2.3. provide you with substitute, non-infringing software.

This section lays down your sole remedy against the Licensor for any claim that your use of the Software in accordance with the terms of this Agreement violates any third party's rights.

14.3. The obligations under the foregoing indemnity by the Licensor are subject to the condition that:

14.3.1. you have not used the Software contrary to the terms of this Agreement;

14.3.2. you give the Licensor prompt written notice of any claim or action for which indemnity is sought;

14.3.3. you allow the Licensor complete control of the defense or settlement of the claim; and

14.3.4. you co-operate with the Licensor in the defense of the claim as may reasonably be required by the Licensor.

15. Limitation of Liability

15.1. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL THE LICENSOR BE LIABLE TO YOU OR ANY OF YOUR CUSTOMERS FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, INCLUDING CUSTOMER DATA) WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE OR THE BREACH OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.2. A PARTY'S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS RECEIVED BY THE LICENSOR FROM YOU DURING THE PERIOD OF ONE (1) YEAR IMMEDIATELY PRIOR TO THE DATE OF THE OCCURRENCE OF THE EVENT THAT GAVE RISE TO THE CLAIM. IN NO EVENT SHALL THIS LIMITATION LIMIT EITHER PARTY'S LIABILITY:-

15.2.1. FOR ANY WILLFUL BREACH OF THE TERMS OF THIS AGREEMENT; OR

15.2.2. FOR INFRINGEMENT OF THE OTHER PARTY'S OR ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

15.3. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.

16. Term and Termination

16.1. This Agreement shall commence on the date on which you agree to the same by selecting the "Agree" button at the end of this Agreement and shall continue in force till the occurrence of the earlier of the following events:

16.1.1. the termination of this Agreement by either the Licensor or by you in accordance with the terms of this Agreement; or

16.1.2. on the date of expiry of a continuous period of 3 months from the date on which the MCALS in your account at the Partner Zone or your Backup Server is zero (0).

16.2. Either party may terminate this Agreement without cause by giving the other sixty (60) days prior written notice of its intention to do so.

16.3. Either party may terminate this Agreement for cause by giving the other party thirty (30) days written if the other party breaches any term or condition of this Agreement. This Agreement will not be terminated if the breaching party cures the breach within thirty (30) days of receipt of notice.

16.4. Notwithstanding anything contained herein, the Licensor may terminate this Agreement forthwith if:

16.4.1. You use the Software in breach of clause 3 : Grant of License or Clause 5 : Permitted Use and Restrictions;

16.4.2. You make any assignment for the benefit of creditors, file a petition for bankruptcy or are adjudged bankrupt or become insolvent or are placed in the hands of a receiver; or

16.4.3. You terminate or suspend your business operations.

16.5. Notwithstanding anything contained herein, you may terminate this Agreement forthwith if:

16.5.1. If you are unable to use the Software for a continuous period of one hundred (100) business days in accordance with the rights granted to under this Agreement and your Package;

16.5.2. If the Licensor fails to perform its support or other obligations hereunder, and such failure is not cured within thirty (30) days after receipt by Licensor of written notice in this regard; or

16.5.3. If the Licensor ceases its operations.

16.6. The termination or expiration of this Agreement will automatically terminate all licenses and rights granted to you under this Agreement. Therefore, on such termination or expiry you and your Customers will cease using the Software and permanently delete all copies of the Software and all parts thereof from all Nodes and return all other Confidential Information of the Licensor in your possession or control. Within ten (10) days from the effective date of the termination, you shall certify in writing that all copies of the Software have been have been returned, permanently deleted and destroyed.

16.7. On your compliance with obligations under clause 16.6, the Licensor shall refund to you the subscription fee for the unused MCALS in your Backup Server and Partner Zone account if the termination of this Agreement was as follows:

16.7.1. By the Licensor without cause pursuant to clause 16.2 or

16.7.2. By you, further to clause 16.3 on account of a breach of this Agreement by the Licensor or further to clause 16.5.

16.8. The expiry or termination of this Agreement will not affect any rights of the parties accrued to them up to the date of termination or that by their terms are to continue in effect after a termination or expiration hereof.

16.9. Neither party will be liable to the other for exercising its right to terminate this Agreement in accordance with the terms hereof.

17. Intellectual Property Rights

17.1. All rights, title and interests including intellectual property rights in and to the Software and the Website and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Software or the Website are owned / licensed by the Licensor and you have no right, title or interest therein except for the limited license as set forth in the Agreement.

17.2. You confirm that you have read and understood the trademark and copyright notices on the Website and agree that this Agreement does not grant you any right, title or interest in any of the said marks or copyrighted material available on the Website.

18. Governing Law and Jurisdiction

18.1. This Agreement, its existence, validity, its interpretation, performance and all matters related to or arising from this Agreement shall be governed by the laws of India without regard of any conflict of law principle or rules.

18.2. You agree that any dispute between the parties arising out of or in connection with this Agreement (including any question regarding its existence, validity or termination) shall be submitted exclusively to the competent courts located at Chennai, India to the exclusion of any other court that may have jurisdiction in the matter.

19. General

19.1. Relationship of the Parties

The relationship between the Licensor and you is on a principal to principal basis and nothing expressed or implied in this Agreement shall be deemed to constitute either party as the partner or agent of the other.

19.2. Assignment

Except as may be otherwise expressly provided in this Agreement, you may not assign, sub-contract or transfer in any manner whatsoever this Agreement or your rights and obligations under this Agreement without first obtaining the Licensor's written consent. The Licensor may freely assign this Agreement or any of its rights or obligations to any third party.

19.3. Notices

Any notice or other communication required to be given under this Agreement will be deemed to be validly given if in writing and delivered by mail or e-mail to the other at their respective address as notified below.

To the Licensor:

Address: Pvt. Ltd.
II A, Kaashyap Enclave
209, Velachery Main Road
Velachery
Chennai - 600042
India
E-mail: storegrid-partner@vembu.com

To you:

Address and e-mail: as available in your account with the Partner Zone

A notice is deemed to be received if:

- Delivered by registered mail, on receipt; and
- Sent by email, the earlier of the sender's receipt of confirmation of successful delivery or two days after dispatch (being when the relevant email first leaves the sender's network for delivery to the recipient's address) provided the sender does not receive any indication of the failure of, or delay in, delivery within 24 hours after dispatch.

19.4. Severability

If any term or provision of this Agreement is held to be illegal, invalid or unenforceable that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect.

19.5. Waiver

Neither party shall be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by the party waiving its right. Any failure or delay by a party to exercise any right or remedy under this Agreement shall not operate as a waiver of that right or remedy. Any waiver by a party of any breach, or failure to exercise any right or remedy, under this Agreement shall not constitute a waiver of any subsequent breach or continuing right.

19.6. Remedies cumulative

Except as is expressly stated otherwise in this Agreement, the rights and remedies available to either party in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law or under this Agreement; and the exercise of any of the rights and remedies provided in this Agreement by either party shall not prejudice the exercise of any other right or remedy under this Agreement or existing at law.

19.7. Entire agreement

This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all previous agreements, arrangements, understandings or representations relating to that subject matter.

19.8. Amendment

The Licensor may modify this Agreement at any time without notice to you by posting a revised Agreement on the Website or the Partner Zone. You are responsible for regularly reviewing this Agreement. Your continued use of the Website or the Partner Zone constitutes your binding acceptance of this Agreement, including any modifications that Licensor makes.

19.9. Precedence

In the event and to the extent of any inconsistency between this Agreement, the details of your Package in the Partner Zone or any other part of the Website, these documents shall, unless expressly stated otherwise, be interpreted in the following descending order of precedence (from high priority to low priority):

- this Agreement;
- your Package; and
- the rest of the Website.