Terms of service

1. DEFINITIONS.

The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1. “Customer Data” means data in electronic form input or collected through the Service by or from Customer, including without limitation by Customer’s Users.

1.2. “Documentation” means Vendor’s standard manual related to use of the Service in printed or electronic form.

1.3. “Order” means an order for access to the Service.

1.4. “Privacy Policy” means Vendor’s privacy policy, currently posted at bep.breakevenpro.com

1.5. “Service” means Vendor’s generally available software-as-a-service, BreakEven PRO for cost estimation for labor intense businesses primarily contractors, and subcontractors.

1.6. “SLA” means Vendor’s standard service level agreement, currently posted at bephost.breakevenpro.com.

1.7. “Term” is defined in Section 11.1 below.

1.8. “Updates” means any corrections, bug fixes, new features or functions added to the Service, but shall not include any new versions that Vendor markets and sells separately.

1.9. “User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.

2. THE SERVICE.

2.1. Use of the Service. During the Term, Customer may access and use the Service pursuant to the terms of this Agreement and any outstanding Order, including such features and functions as the Order requires.

2.2. Service Levels. Vendor shall provide the remedies listed in the SLA for any failure of the Service listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the Service, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to future invoices only and are forfeited upon termination of this Agreement. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.

2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Service.

2.4. Service Revisions. Vendor may modify the Service features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels without notice to customer provided that such modification will not materially affect the Service. If any such revision to the Service will materially reduce features or functionality provided pursuant to an Order, Vendor will provide notice to Customer and Customer may within 30 days of receipt of said notice, terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect to such Order until the start of the Term beginning 45 or more days after Vendor posts the revision and so informs Customer.

2.5. _admin@breakevenpro.com is the primary point of contact for and will address all issues raised by Customer.

3. SERVICE FEES.

3.1. Customer shall pay Vendor all fees in accordance with the terms set forth in each Order (the “Service Fee”). Vendor will not be required to refund the Service Fee under any circumstances. Updates to the Service are included in the Service Fee.

3.2. All orders are subject to acceptance by Vendor in its discretion. All Customer ordering information must be current, complete and accurate and it is Customer’s responsibility to advise Vendor of any changes to its ordering information.

4. CUSTOMER DATA & PRIVACY.

4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Service; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4.2. Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party website or service linked to the Service or recommended or referred to through the Service or by Vendor’s staff.

4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

4.4. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Customer Data and any other data uploaded by Users.

4.5. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.

4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor’s computers or other media, any data (“Excluded Data”) regulated pursuant to (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SERVICES ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

4.7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)

5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

5.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the source code to the Services; (b) use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (c) remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or contained within the Services or any copies thereof; (d) provide Service passwords or other log-in information to any third party; (e) share non-public Service features or content with any third party; or (f) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; (g) knowingly or negligently use the Service in a manner that abuses or disrupts the Vendor’s network, security system, user account or Services of Vendor or other properties or services of any third party; (h) use the Service, or data provided by the Service, in violation of any Vendor policies, applicable laws, ordinances, or regulations; or (i) otherwise use the Service for any purpose that is not contemplated by this Agreement. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the Service immediately without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Vendor is free to take any such action it sees fit.

5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.

5.3. Compliance with Laws. In its use of the Service, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.

5.4. Users & Service Access. Customer is responsible and liable for: (a) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Service through Customer’s account, whether authorized or unauthorized.

5.5. Data Use. Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is provided to Customer, may be used by our third party vendors to conduct certain analytical research, performance tracking and benchmarking. Such third party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including helping to improve products and services and assisting in troubleshooting and technical support. Customer’s personally identifiable information will not be shared with or sold to third parties.

5.6. Data Transfer. Customer agrees and acknowledges that Customer’s data, including financial or personal information, may be transferred to a third party located in a country that does not have adequate security controls to protect Customer’s data.

5.7. Third Party Services. Customer understands that the Services may require access to certain third party services (“Third Party Services”). In order to use the Services that uses or collects data from the Third Party Services, Customer hereby authorizes third party service providers, including Intuit, to obtain Customer’s data from third parties and share it with Vendor for the Services. Such data may include Customer’s financial or personal information with third parties. In addition, Customer agrees that Vendor may provide Customer’s data to the third party service provider. Customer represents and warrants that Customer has the rights and authority to provide such authorizations to the third party service providers and Vendor. Customer’s use and/or access to Third Party Services shall be limited to those uses and access rights permitted by the third party service provider. If Customer accesses or uses the Third Party Services, Customer is responsible for reviewing and understanding any such terms and conditions governing such Third Party Services. Customer understands that Vendor has no control over the Third Party Services and that Customer’s ability to access and use the Third Party Services may be suspended or terminated at any time, for any reason, at the third party service provider’s discretion.

5.8. Security. Customers are fully responsible for the security of data on Customer’s website or otherwise in Customer’s possession or control. Customers agree to comply with all applicable state and federal laws and rules in connection with its collection, security and dissemination of any personal, financial, credit card, or transaction information (defined as “Data”) on its website. Customer agrees, where applicable, it shall be compliant with the Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS), as applicable. It is Customer’s responsibility to comply with these standards.

5.9. Third Party Beneficiary. Customer acknowledges that Intuit is a third party beneficiary under this Agreement with rights to enforce the terms of this Agreement.

6. IP & FEEDBACK.

6.1. IP Rights to the Service. Vendor retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service; and all modifications, derivative works, and upgrades. This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components. Customer recognizes that the Service and its components are protected by copyright and other laws.

6.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)

7. CONFIDENTIAL INFORMATION.

“Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within ten (10) business days; (c) the Documentation whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Vendor. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.

7.1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than in conjunction with accessing and using the Service (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.

7.2. Injunction. Customer agrees that breach of this Article 7 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate thirty (30) days after the date of disclosure; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.

7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.

7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

• (a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
• (b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

8. REPRESENTATIONS & WARRANTIES.

8.1. Disclaimer. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES, ANY THIRD PARTY SERVICES AND ANY DATA PROVIDED VIA THE THIRD PARTY SERVICES OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” VENDOR, ITS LICENSORS AND THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES, ANY THIRD PARTY SERVICES OR ANY DATA PROVIDED VIA THE THIRD PARTY SERVICES OR SERVICES, IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ANY USE OF THE SERVICES, THIRD PARTY SERVICES OR DATA PROVIDED VIA THE THIRD PARTY SERVICES OR SERVICES WILL BE AT CUSTOMER’S SOLE RISK, AND THAT, IF THERE IS ANY LIABILITY IN CONNECTION WITH THE SERVICES, INCLUDING LIABILITY ARISING FROM A SECURITY BREACH OR VENDOR’S LACK OF COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS OR DATA PRIVACY PROTECTION, SUCH LIABILITY IS SOLELY WITH THE VENDOR AND NOT ITS LICENSORS OR THIRD PARTY SERVICE PROVIDERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. Vendor makes no warranty and will have no responsibility for any claim arising out of:

• (i) a modification of the Service made by anyone other than Vendor unless Vendor approves such modification in writing.
• (ii) use of the Service in combination with any operating system not authorized in the documentation.

8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Service; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

9. INDEMNIFICATION.

Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; and (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation by Customer Data. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

10. LIMITATION OF LIABILITY.

10.1. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID AND PAYABLE BY CUSTOMER TO VENDOR DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEEDING THE FIRST ACT GIVING RISE TO LIABILITY. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11. Term & Termination.

11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one year. Thereafter, the Term will renew for successive one year periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.

11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach. Vendor may terminate this Agreement effective immediately if Customer, or one of Customer’s Users, breaches any of the provisions set forth in Section 5.1 of this Agreement.

11.3. Effects of Termination. Termination of this Agreement by either party will not release the Customer from its obligation to all fees and expenses that accrued prior to the effective date of termination. On the effective date of termination of this Agreement, Vendor shall have the right to cancel Customer’s access to the Service and Customer shall cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: 3 (Service Fees), Section 6 (IP & Feedback), 7 (Confidential Information), 9 (Indemnification), and 10 (Limitation of Liability); and any other provision of this Agreement that must survive to fulfill its essential purpose.

12. MISCELLANEOUS.

12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

12.2. Notices. All notices required under this Agreement shall be in writing. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to admin@breakevenpro.com, and such notices will be deemed received 72 hours after they are sent.

12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement, but only for so long as the force majeure event persists. Force majeure events may include: natural disasters, acts of war, terrorism (including cyberterrorism, data breach and hacking), activities of Internet Service Providers, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, acts of government or other causes beyond the performing party’s reasonable control.

12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Illinois, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Lake County, Illinois. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

12.8. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, including the Privacy Policy, the terms of this Agreement will govern.

12.9. Technology Export. Customer shall not: (a) permit any third party to access or use the Service in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Service in, or export such software to, a country subject to a United States embargo as of the Effective Date of the Agreement.

12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

12.11. Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.11, Vendor may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.