PLEASE REVIEW THIS SERVICES AGREEMENT SETTING OUT THE TERMS OF SERVICE CAREFULLY AS IT DETAILS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, CERTAIN RESTRICTIONS AND LIMITATIONS AND EXCLUSIONS TO OUR LIABILITY. IT IS INTENDED TO BE A LEGALLY BINDING AGREEMENT. BY PROCEEDING TO DOWNLOAD, INSTALL AND/OR USE SPORK SOFTWARE, SAAS AND/OR SERVICES, WHETHER DIRECTLY OR THROUGH ANY SERVANT OR AGENT: (1) YOU ARE EXECUTING THIS AGREEMENT, (2) YOU ACKNOWLEDGE THIS IS A LEGALLY BINDING AGREEMENT, (3) YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS AND ACCOMPANYING ANNEXURES, AND (4) YOU AGREE TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS AND ANNEXURES AS A PARTY TO THIS AGREEMENT AND, IF YOU ARE AN EMPLOYEE OR AGENT, TO BIND YOUR EMPLOYER OR PRINCIPAL.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS AND ANNEXURES OR ARE NOT PROPERLY AUTHORIZED TO BIND ANY EMPLOYER OR PRINCIPAL, PLEASE NAVIGATE AWAY FROM THIS PAGE WITHOUT DOWNLOADING THE SOFTWARE AND/OR REMOVE THE SOFTWARE IF YOU NO LONGER AGREE TO BE BOUND BY THESE TERMS.
This Spork Terms of Service Agreement, including all and any Annexures and referenced URLs (“Agreement”), is entered into between SPORK TECHNOLOGY INC., with its principal place of business located at 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808 (“Spork”) and the customer identified on the order for Spork Services (as later defined), (“Customer”), and effective on the date on which Customer executes this Agreement (“Effective Date”).
1. SCOPE. This Agreement governs Spork’s provision to Customer of such Spork SaaS and/or such other services selected and ordered (“Spork Services”) by Customer on the Spork website (“Website”). The parties agree that the terms of this Agreement shall extend to and govern all orders placed on Spork by Customer as well as any receipt and use by Customer and/or Permitted Users (as later defined) of the Spork Services. It is understood by Customer that any software functionality, including that enabled by Spork’s proprietary software (“Software”), made available to Customer pursuant to this Agreement shall be provided as part of Spork’s software-as-a-service offering (“Spork SaaS”) forming part of the Spork Services and that no physical copies of Software shall be provided by Spork.
3. PERMITTED USE BY OTHERS. Spork hereby authorizes Customer to permit Customer's affiliates, servants and agents (“Permitted Users”) to receive, access and use Spork Services for the Agreed Purpose on condition that (i) Customer shall procure the compliance of Permitted Users with the terms of this Agreement and (ii) Customer shall remain responsible and liable for any misuse of the Spork Services or breach of the terms of this Agreement by Permitted Users in connection with their use of the Spork Services or in connection with this Agreement, specifically including any applicable security, integrity or privacy laws or regulations and Acceptable Use (as later defined).
4. ACCEPTABLE USE. Receipt, access and use of and to the Spork Services by Customer and/or Permitted Users is granted on condition of their strict compliance with the following restrictions, that under no circumstances shall Customer and/or Permitted Users: (i) transmit content that violates the privacy, intellectual property or other proprietary rights of Spork or any other party; (ii) knowingly or recklessly transmit viruses, trojan horses, worms, malicious code, or other harmful or destructive content; (iii) breach any terms of this Agreement, or any applicable law; (iv) attempt to probe, scan, test, re-engineer or violate the security features of Spork Services or any associated system or network, or to obtain unauthorized access to materials or other information stored thereon; (v) attempt to sell, resell, transfer, assign, license, sublicense, pledge, lease, rent, distribute, timeshare, or share or otherwise commercially exploit or make the Spork Services available to or for the benefit of any third party, other than Permitted Users; (vi) attempt to interfere with or disrupt the integrity or provision of the Spork Services or the data contained therein; (vii) exploit or present minors in a sexual way, or promote adult sexual services, or represent a private person offering to trade or sell drugs, firearms, or other hazardous materials, including any indication or promotion of hate speech; (viii) remove any copyright, trademark, or other proprietary notices from any portion of the Spork Services; (ix) use meta tags, hidden text or metadata with Spork’s trademark, logo, URL or product name without Spork’s prior written consent; (x) use Spork’s user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Spork Services to send altered source-identifying information; (xi) share with any third party the login credentials used to access and use the Spork Services; and/or (xii) attempt to interfere with the provision or use of the Spork Services, whether directly or indirectly, by any other manner not expressly mentioned above (collectively, “Acceptable Use”).
5. ACCOUNT ACCESS. To enable receipt, access and use of and to the Spork Services, Customer and/or each Permitted User shall register for and maintain an active Spork account (“Account”). It is a condition of receipt, access and use of and to the Spork Services that each Permitted User must be at least 18 years of age and Spork shall, in no manner whatsoever, be liable for any violation of the foregoing. Customer shall be responsible for all activity that emanates from any Customer or Permitted User Account and for any use not in conformance with Acceptable Use.
6. SUPPORT. By creating an Account, Customer consents to Spork sending Customer and/or Permitted Users email communications necessary to give effect to the terms of this Agreement. Customer and/or Permitted Users may opt-out of receiving such communication at any time by clicking the unsubscribe button located on any such email communications from Spork. Customer acknowledges that opting out of such communication may impact the quality and beneficial use of the Spork Services. As part of its provision of the Spork Services, Spork shall make available to Customer and/or Permitted Users reasonable support and information in connection with same, which support and information may be provided via phone, email or other reasonable means, in accordance with instructions to be shared by Spork with Customer and each Permitted User.
8. MODIFICATIONS TO SYSTEM & UPDATES. Customer acknowledges that it is obtaining the benefit of a standard service and that, as such, Spork may, in its sole discretion: (i) reengineer its network or service components, (ii) change the locations of its hosting centers, (iii) modify and/or replace technology and/or service architectures, without material degradation of the Spork Services, and (iv) from time to time, provide enhancements or improvements to the features and/or functionality of the Spork Services, which may include patches, bug fixes, updates, upgrades and other modifications (collectively, “Updates”). As the Spork Services evolve over time, such Updates may operate to modify or delete certain then-existing features and/or functionalities of the Spork Services. To this end, Customer hereby agrees that Spork has no obligation: (i) to provide any specific Updates, or at all, or (ii) to continue to provide or enable any particular features and/or functionalities of Spork Services to Customer and/or Permitted Users. Customer further agrees that all Updates will, upon installation by Spork, be: (i) deemed to constitute an integral part of the Spork Services, and (ii) subject to the terms of this Agreement.
9. FEES. Customer agrees to pay Spork the fees corresponding to the particular Spork Services ordered by Customer, as set forth from time to time on the Website (“Fees”), in accordance with the payment terms set out therein. Such Fees are exclusive of all applicable taxes in any relevant jurisdiction and Customer shall be responsible for the payment of all such validly levied taxes, specifically excluding all and any taxes accruing on the basis of Spork’s income which shall remain the responsibility of Spork. Customer acknowledges that all Fees due hereunder are payable in advance and that any delay or failure on the part of Customer to pay the agreed Fees by the due date for payment shall enable Spork, without further notice, to suspend the Spork Services or terminate this Agreement in accordance with its terms.
11. INTELLECTUAL PROPERTY RIGHTS. Notwithstanding anything to the contrary set forth in this Agreement, each party shall continue to own title to any Intellectual Property Rights (i) it owned as at the Effective Date, (ii) created and owned independently of this Agreement, and (iii) any modifications, adaptations and derivations of subsections (i) and (ii) above (“Background IP”) and nothing in this Agreement shall operate to transfer any Background IP between the parties. Spork and/or its licensors own all worldwide Intellectual Property Rights in the: (a) Software and user interfaces used for providing the Spork Services; (b) Spork SaaS; (c) Products; and (e) all trademarks, service marks and logos of Spork (“Spork IP”). Except for the right to receive, access and use the Spork Services as expressly set forth herein specifically for the Purpose, no right or license is granted hereunder with respect to the Spork IP. Further, Customer shall not, and shall procure that its Permitted Users shall not, nor permit any third party to: (a) use, copy, adapt, modify or create derivative works of the Spork IP; (b) where applicable, reverse-engineer, disassemble, or decompile the Spork IP or otherwise attempt to determine its underlying source code; (b) sell, lease, sublicense, rent, lend or provide any portion of the Spork IP to any third party or allow the use of the Spork IP by, or for the benefit of any person other than its Permitted Users ((a), (b) and (c) collectively “IP Restrictions”. For the purposes of this Agreement, “Intellectual Property Rights” shall mean all patents, inventions, discoveries, registered and unregistered rights in respect of copyright, industrial and other designs, databases, circuit layouts, trademarks, domain names, know-how, confidential information trade secrets, and all other intellectual property.
12. CUSTOMER/PERMITTED-USER REQUIREMENTS & CONDUCT. Customer shall ensure that neither it nor any Permitted Users will, in connection with their use of the Spork Services, upload, share, or otherwise distribute any electronic data, text, messages or other materials, including personal data of such Permitted User (“Service Data”) in violation of Acceptable Use. Spork reserves the right, in its sole discretion, to remove any Service Data that, in its good faith judgment, fails to comply with the terms of this Agreement, any other rules of user conduct, or is otherwise harmful, objectionable, or inaccurate. Spork shall not be responsible for any failure or delay in removing such content or any business consequences of removing same.
13. SERVICE DATA. As between the parties, all right, title and interest in and to Service Data remains vested in Customer and Customer hereby grants Spork a non-exclusive, worldwide, royalty free license to use, transmit, distribute, modify, reproduce, display, store and process Service Data to the extent necessary for Spork to make available and provide the Spork Services to Customer and/or Permitted Users and to perform its obligations under the Agreement. In no circumstances shall Spork share such Service Data or use such Service Data for the benefit of Spork directly or Spork’s other customers.
14. ANONYMOUS DATA. Notwithstanding anything to the contrary herein, Customer hereby agrees that Spork may create de-identified, aggregated or anonymous data which may, in part, include processing of and anonymizing Service Data (“Anonymous Data”) for the purposes of operating, analyzing, improving, or marketing the Spork Services provided always that any such Anonymous Data will in no circumstances, identify Customer or any Permitted User or enable the identification of same and that all persistent identifiers have been removed.
15. SERVICE USAGE DATA. For the sole purpose of providing and improving the Spork Services, Spork may collect and use data relating to the usage by Customer and/or Permitted Users of the Spork Services, including without limitation monitoring and analyzing usage and traffic patterns of its websites and Spork Services. Such usage data: (a) is not Service Data; (b) does not include any personal information about Customer or Permitted Users; and (c) is owned by Spork.
16. CONFIDENTIALITY. Any data and information, whether written, oral, or visual, including data and information that at the time of disclosure by disclosing party to the receiving party is identified as ‘confidential’ or which, based upon the content and circumstances of disclosure, would lead a reasonable person to conclude such data and information to be ‘confidential’ shall be deemed “Confidential Information”. Each party shall hold the Confidential Information of the other party in confidence, use same only to meet its obligations under the Agreement and not disclose such Confidential Information to any third party, save as expressly permitted by this Section 16. Each party may share the Confidential Information with those of its servants and agents that have a bona fide reason to receive same in furtherance of the sharing party’s obligations under the Agreement provided: (i) the sharing party remains liable for the breach of this section by its servants and agents receiving Confidential Information; and (ii) any such receiving servants and agents are similarly bound by broadly comparable obligations of confidentiality. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) was already known by the receiving party through legitimate means; (b) is in the public domain, or becomes so, without fault of receiving party; (c) is independently derived by receiving party without access to the Confidential Information of the other party; or (d) is obtained from a third party absent breach of any obligations of confidentiality. Any breach of this provision by either party may cause irreparable harm to the other party for which monetary damages would be an inadequate remedy. Consequently, the non-breaching party shall be entitled to seek injunctive or other equitable relief from the court without proof of loss.
18. WARRANTY & DISCLAIMER
18.1. LIMITED WARRANTY. Spork represents and warrants that it has all necessary authority to enter into this Agreement and all necessary rights, title and interest to enable Spork to perform its obligations under this Agreement, including the provision of Spork Services.
18.2. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 18.1, SPORK MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, NOR ANY WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. SPORK DOES NOT WARRANT THAT THE SPORK SERVICES AND/OR USAGE OF THE PRODUCTS WILL BE FREE OF INTERRUPTIONS, ERRORS, BUGS, VIRUSES OR SECURITY ISSUES OR THAT THEY WILL MEET ANY SPECIFIC CUSTOMER OR PERMITTED USER REQUIREMENTS. CUSTOMER AGREES THAT IT IS FOR CUSTOMER TO VALIDATE THAT THE SPORK SERVICES MEET THE SPECIFIC NEEDS OF CUSTOMER AND/OR PERMITTED USERS.
19.1. SPORK INDEMNITY. Spork hereby agrees to indemnify, and defend Customer, its directors, officers and employees (“Indemnified Customer Parties”) from and against all costs, expenses (including reasonable attorneys’ fees), liabilities, and damages suffered by Indemnified Customer Parties, arising out of any third-party claim: (i) that Customer’s receipt, access, and use or possession of the Spork Services and/or Products infringed the Intellectual Property Rights of a third party (“IP Claim”); (ii) for death or bodily injury resulting from the negligence of Spork, its servants or agents. Notwithstanding the foregoing, Spork shall have no liability or obligation to indemnify Indemnified Customer Parties against any IP Claim to the extent such IP Claim results from: (a) any modification or unauthorized use of the Spork Services and/or the Products (collectively, “Deliverables”); or (b) any breach of this Agreement by Customer and/or Permitted Users ((a) and (b), collectively "Indemnity Exclusions").
19.2. IP CLAIM. If the provision by Spork of any Deliverable becomes the subject matter of a third party IP Claim that does not fall within the Indemnity Exclusions, Spork may, at its option: (i) obtain for Customer and/or Permitted Users the right to continue using the affected portion of the Deliverables; or (ii) replace or modify the affected portion of the Deliverables. If either of the above options are not reasonably available, Spork may immediately terminate this Agreement upon giving 15 calendar days’ prior written notice to Customer. This Section 19 states Spork’s sole and exclusive liability with respect to any IP Claim (whether actual or alleged) resulting from Spork’s provision of Deliverables (or any part thereof) pursuant to this Agreement.
19.3. CUSTOMER INDEMNITY. Customer hereby agrees to indemnify and defend Spork, its directors, officers and employees (“Indemnified Spork Parties”) from and against all costs, expenses (including reasonable attorneys’ fees), liabilities, and damages suffered by the Indemnified Spork Parties, arising out of any third-party claim: (i) based on violation by Customer and/or any Permitted User of any applicable law; (ii) that Spork’s storage or use of Service Data in accordance with this Agreement infringed the Intellectual Property Rights of a third party; (iii) for death or bodily injury resulting from the negligence of Customer, its servants or agents. The indemnification obligation set forth above will survive the termination or expiration of this Agreement.
20.1. EXCLUSION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPORK, ITS SERVANTS AND AGENTS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF A STATUTORY DUTY OR OTHERWISE, FOR ANY PURE ECONOMIC LOSS, LOST PROFITS, LOST BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS, REPUTATIONAL DAMAGE, LOST GOODWILL, LOST (INCLUDING THEFT THROUGH HACKING) OR CORRUPTED DATA OF CUSTOMER OR ANY THIRD PARTY, OR ANY INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SPORK SERVICES OR THIS AGREEMENT, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSSES.
20.2. LIMITATION OF LIABILITY. SPORK’S ENTIRE LIABILITY FOR ALL CLAIMS IN AGGREGATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF DELIVERABLES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, IS LIMITED TO AND SHALL NOT EXCEED: (A) IN THE CASE OF NON-PRODUCT BASED CLAIMS, THE FEES ACTUALLY PAID BY CUSTOMER TO SPORK FOR THE SPORK SERVICES DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM AROSE; OR (B) IN THE CASE OF PRODUCT BASED CLAIMS, THE PRICE PAID BY CUSTOMER FOR THE NON-CONFORMING PRODUCTS THAT RESULTED IN THE CLAIM.
20.3. EXCEPTIONS TO LIABILITY LIMITATION. NOTWITHSTANDING SECTIONS 20.1 AND 20.2 ABOVE, NEITHER PARTY SEEKS TO EXCLUDE LIABILITY FOR WILLFUL DEFAULT, FRAUD, DEATH OR BODILY INJURY RESULTING FROM ITS NEGLIGENCE AND/OR ANY OTHER MATTER FOR WHICH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW (COLLECTIVELY, “LIABILITY CAP EXCEPTIONS”). CONSEQUENTLY, THE EXCLUSIONS AND LIMITATION SET OUT IN SECTIONS 20.1 AND 20.2 ABOVE SHALL NOT APPLY TO LIABILITY CAP EXCEPTIONS.
20.4. FAIRNESS OF LIABILITY PROVISION. CUSTOMER ACKNOWLEDGES AND AGREES THAT SPORK HAS ENTERED INTO THIS AGREEMENT AND PROVIDED CUSTOMER AND PERMITTED USERS WITH ACCESS TO THE SPORK SERVICES FOR THE AGREED LEVEL OF FEES IN RELIANCE UPON THE EXCLUSIONS OF LIABILITY, SET FORTH IN SECTION 20.1 THE LIMITATION OF LIABILITY, SET FORTH IN SECTION 20.2 AND THE EXCEPTIONS TO LIABILITY LIMITATIONS SET OUT IN SECTION 20.3 (COLLECTIVELY, “AGREED RESTRICTIONS”). CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT AS AN ESSENTIAL CONDITION OF SPORK ENTERING INTO THIS AGREEMENT AND PROVIDING THE SPORK SERVICES, SUCH AGREED RESTRICTIONS REFLECT A REASONABLE AND FAIR ALLOCATION OF THE RISK BETWEEN SPORK AND CUSTOMER, UPON WHICH THE AMOUNT OF THE FEES HAS BEEN PREDICATED AND AGREED.
21. TERM, RENEWAL & TERMINATION
21.1. TERM. The Spork Services are provided and paid for by the Customer on either a monthly plan basis or an annual plan basis through the Website. The selected basis of either a monthly payment basis or an annual payment basis (as selected by Custom through the Website, the “Term Basis”) forms the basis for the term. This Agreement is effective as of the Effective Date and shall continue in effect for the Term Basis (the “Initial Term”), unless terminated earlier as provided herein. After the Initial Term and unless terminated earlier, this Agreement shall automatically renew for additional Term Basis periods (each, a “Renewal Term”). For example, a monthly subscription would have an Initial Term of one month and a Renewal Term of one month, whereas a yearly subscription would have an Initial Term of one year and a Renewal Term of one year. The Initial Term and any Renewal Terms hereunder shall be collectively referred to as the “Term.” Either Party may terminate this Agreement by providing written notice to the other Party no later than fifteen (15) days prior to the start of a Renewal Term, whereupon this Agreement shall terminate at the end of the Initial Term or Renewal Term, as applicable, in effect at the time of such notice.
21.2. TERMINATION FOR CONVENIENCE. Either party may terminate this Agreement for its convenience, without further liability, at any time by providing 30 days’ prior written notice to the other party.
21.3. TERMINATION FOR CAUSE. Either party may terminate the Agreement by notice in writing in the following circumstances: (i) the other party materially breaches the Agreement and fails to cure such breach within 20 calendar days of a written request by the non-breaching party to do so; (ii) the other party becomes insolvent or generally unable to pay its bills; (iii) Spork may terminate the Agreement for cause where Customer has failed to pay any Fees that are at least 10 calendar days in arrears following the issuance by Spork of a written request for payment
21.4. SUSPENSION. Spork may without notice suspend access to the Spork Services in circumstances where: (i) Fees are overdue on the Customer’s account; (ii) Customer and/or Permitted Users are non-compliant with Acceptable Use; (iii) Customer is in breach of any provision of the Agreement; (iv) suspension is advisable to prevent or mitigate any damage or harm to Spork Services or other users; and/or (v) Spork intends to perform maintenance, updates or improvements to the Spork Services.
21.5. CONSEQUENCES OF TERMINATION. Upon termination of the Agreement for any reason: (i) Spork shall disable all access of Customer and Permitted Users to the Spork Services; (ii) Customer shall pay all amounts due and payable to Spork upon demand; (iii) Spork shall not be liable to refund any amounts paid in advance by Customer for the Spork Services; and (iv) Spork may upon the expiry of 14 calendar days following termination purge from the Spork System all Service Data. Notwithstanding section 21.5 (iii), solely in the event that Spork terminates for convenience under Section 21.2, then any amounts paid in advance by Customer for the Spork Services shall be refunded on a prorated basis for any unused portion of the prepaid Spork Services.
22. MISCELLANEOUS PROVISIONS
22.1 FORCE MAJEURE. Neither party will be in default of its failure to perform any obligation hereunder (other than any payment obligation) to the extent that its non-performance results from causes beyond its reasonable control, including, without limitation, acts of God, civil commotion, epidemics and pandemics (together with the resulting consequences or mitigations of same), strikes, labor disputes, internet service disruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements. Upon the duration of any such event of force majeure continuing for longer than 10 calendar days, the other party may terminate this Agreement for its own convenience, without incurring additional liability.
22.2 ASSIGNMENT. (a) Subject to Subsection (b) of this Section 22.2, neither party may assign, novate or otherwise transfer any of its rights and/or obligations under this Agreement to any person without the prior written consent of the other party and any attempt to do so will be void. (b) Notwithstanding Subsection (a) of this Section 22.2, Spork may, without consent, assign this Agreement to an Affiliate or in connection with any merger, acquisition, reorganization, or other transfer of all or substantially all of its assets.
22.3 NOTICES. All notices made under or in connection with this Agreement must be in writing and sent to the other party at the address for such other party first set out in this Agreement or, in the case of the Customer, at the address provided by Customer at the time the order for Spork Services was placed. Either party may elect to change its address for the purposes of receiving notices pursuant to this Agreement by providing the other party with written notice of such change. In the event of a termination under Section 21.1, Customer may provide notice through the Website, if such functionality is present at the time of such termination notice.
22.4 SURVIVAL. Each party’s obligations under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive such termination, cancellation or expiration.
22.5 WAIVER. Any waiver or purported waiver shall be void unless made in writing and neither party’s failure to exercise any of its rights under this Agreement shall constitute or be deemed a waiver or forfeiture of any such rights.
22.6 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between the parties as to the matters set out herein and supersedes any prior agreement or communication. Any subsequent modification of this Agreement, or any part of it, shall only be effective if reduced to writing and signed and dated by both parties.
22.7 SEVERABILITY. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remainder of the Agreement shall continue to be valid and such impacted provision shall be deemed modified to the extent necessary to render such provision enforceable, while preserving to the fullest permissible extent the intent of the parties.
22.8 GOVERNING LAW & JURISDICTION. The Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware and each party submits to the exclusive jurisdiction of the courts of New Castle County.