1.01. Scope of License. You are purchasing a nonexclusive nontransferable nonsublicensable revocable single end user license to use the Platform during the term of Your subscription (the “Services”). This license expressly excludes all other Learnistic software and subscriptions for which You have not paid separate subscription or licensing fees. You understand and agree that this license does not permit anyone other than You to use the Platform. You understand and agree the copyrights and trademarks for the Platform are owned solely by Learnistic, and by purchasing a subscription that includes this license, You do not acquire any intellectual property ownership of the Platform, training content, or supporting documentation.
1.02. Confidentiality. You agree to keep confidential the proprietary data and copyrighted information You receive with the Platform (e.g., BerserkerMail training content, supporting documentation, etc.) and agree not to publish, resell, distribute, or summarize them for others’ use in any way. You understand the Platform: (a) remains the sole and exclusive property of Learnistic, which retains all rights thereto; (b) cannot not be resold by You or otherwise distributed with or without consideration; (c) will not be made available by You to any other person except Your employees or agents; (d) will not be reproduced or summarized in any manner; and (e) will be destroyed immediately upon written demand by Learnistic should You violate any of these terms or conditions.
If Learnistic requests destruction of Learnistic’s training content, supporting documentation, or other intellectual property upon termination of this Agreement for any reason, You agree to furnish Learnistic with an Affidavit of Destruction in a form satisfactory to Learnistic acknowledging Your destruction of all copies of such intellectual property in Your possession or control within seven (7) business days of the termination.
If You violate the terms and conditions of this Agreement, Learnistic may pursue civil and/or criminal prosecution against You.
1.03. License Term & Renewal. The term of this license to use the Platform commences upon the date you purchase your initial subscription term and shall continue only as long as You remain a paid subscriber in good standing. Your subscription shall cease immediately upon the earlier of the termination of the subscription program by Learnistic, the termination of Your subscription for nonpayment of the subscription fees, or upon Your violation of the terms or conditions of this Agreement or the BerserkerMail User Guidelines (the “Guidelines”). Unless three (3) calendar days advance written notice of intent not to renew is given by either Party to the other Party prior to the end of a current subscription term, or the subscription is cancelled by either Party, this Agreement shall automatically renew for an additional subscription term of the same length.
1.04. Intellectual Property Ownership. You will not at any time during or after the effective term of this Agreement, dispute or contest, directly or indirectly, Learnistic's exclusive right and title to the Platform and/or the copyrights and trademarks, or the validity thereof. Learnistic, however, makes no representation or warranty with respect to the validity of any trademark or copyright that may issue or be granted therefrom.
You acknowledge the Platform and Learnistic’s trademarks have acquired secondary meaning.
You agree Your use of the Platform inures to the benefit of Learnistic and You shall not acquire any rights in the Platform and/or the trademarks and copyrights.
1.05. Termination. Upon termination of your Platform subscription hereunder for any reason, You acknowledge all of Your rights under this Agreement shall forthwith terminate and immediately revert to Learnistic and You shall immediately discontinue all use of the Platform, and the like at no cost whatsoever to Learnistic.
1.06. Goodwill. You recognize the value of the goodwill associated with the Platform and acknowledge the Platform, and all rights therein including the goodwill pertaining thereto, belong exclusively to Learnistic.
1.07. Third-Party Infringement. Learnistic shall have the sole and exclusive right, in its discretion, to prosecute lawsuits against third persons for infringement of the rights licensed in this Agreement. All sums recovered in any such lawsuits, whether by judgment, settlement or otherwise, in excess of the amount of reasonable attorneys’ fees and other out-of-pocket expenses of such a suit, shall be retained solely by Learnistic. You will fully cooperate with Learnistic in the prosecution of any such suit against a third party and shall execute all papers, testify on all matters, and otherwise cooperate in every way necessary and desirable for the prosecution of any such lawsuit.
2.01. General Use of Platform. You agree to use the Platform solely for the purposes described for the Platform on BerserkerMail’s website BerserkerMail.com (the “Website”) and the Guidelines unless you obtain prior written permission from Learnistic to use the Platform for another purpose. The Guidelines may be updated from time to time. It is Your responsibility to check for such updates. Each time you log in to the Platform, you are agreeing to the terms and conditions of the latest version of the Guidelines.
2.02. Restriction to Designated Hardware. The Platform may be accessed only via Designated Hardware. As used in this Agreement the term ''Designated Hardware'' consists of computers, cell phones, or tablets owned or leased by You.
2.03. Copies of Supporting Documentation.
(a) Except as provided in this Subsection 2.03, You shall not copy any portion of the Platform’s supporting documentation (e.g., instruction manuals). You may make one (1) ''backup copy'' for archival purposes. The copy shall be kept in a secure location where it cannot be accessed by third parties.
(b) You shall reproduce and include Learnistic's applicable copyright notice, patent notice, trademark, or service mark on any backup copy of the Platform’s supporting documentation. Furthermore, the copy shall state that it is the property of Learnistic in the following language:
“BerserkerMail and supporting documentation is the property of Learnistic LLC, a Florida limited liability company, and is protected under the copyright, trade secret, and proprietary laws of the United States.”
2.04. Your User Responsibilities. You shall be exclusively responsible for the supervision, management, and control of Your Platform account, including, but not limited to:
(a) Assuring proper configuration of the Designated Hardware, related equipment, and devices; and compatibility with the Platform.
(b) Establishing adequate operating methods.
(c) Implementing procedures sufficient to satisfy Your obligations for security under this Agreement, including appropriate control of Your employees and other agents to prevent misuse, unauthorized copying, modification, or disclosure of Learnistic’s intellectual property.
2.05. Modifications, Adaptations & Reverse Engineering. You agree that only Learnistic shall have the right to alter, maintain, enhance or otherwise modify the Platform. You shall not attempt to adapt, copy, disassemble, decompile, or reverse engineer the Platform.
2.06. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of You to comply with these terms and conditions shall constitute sufficient cause for Learnistic to terminate this Agreement. The presence of this Subsection 2.06 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either Party.
3.01. Title to Platform. Title to the Platform is reserved for Learnistic, including any corrections, bug fixes, enhancements, updates or other modifications. You acknowledge and agree that Learnistic is and shall remain the owner of the Platform. Some portions of the Platform’s code are subject to the following open source licenses: Apache License 2.0, BSD-3-Clause License, ISC License, MIT License, and Server Side Public License 1.0. Other parts of the Platform’s code are subject to the Stripe Services Agreement and the CleanTalk License Agreement. To the extent portions of the Platform’s code are governed by these and other third-party licenses, You agree to comply with those licenses in addition to the terms and conditions of this Agreement.
3.02. Title to Your Data. Title to Your account’s data is reserved solely to you. Learnistic acknowledges and agrees that you shall remain the sole owner of your email lists.
3.03. Your License to Us. By providing any information or content in order to use the Platform, including but not limited to, Your email subscribers’ names, email addresses, and your email messages (individually and collectively, “Account Data”), You are representing that: (i) You are the owner of the Account Data; (ii) You have collected such data by lawful means; and (iii) You have the legal right to use the Account Data to send commercial emails via our Platform. You are granting Learnistic, its employees and agents a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, transmit, and display such Account Data, in whole or in part, in connection with Learnistic’s provision of BerserkerMail Platform Services to You. Account Data use includes Learnistic’s right to store such data for the latter of (a) one hundred eighty (180) days after subscription cancellation and (b) any Account Data retention requirements imposed by applicable law. The foregoing grants shall include the right to exploit any proprietary rights in such use, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, You grant us, and anyone authorized by us, the right to identify You as the sender of email messages using the Account Data, together with Your name, business name, sender email address, and postal mailing address.
3.04. Security. You agree to keep Your Platform account access information in a secure place, under access and use restrictions designed to prevent use of the Platform by unauthorized persons. You agree to at least implement the security precautions that You normally use to protect your own confidential materials and trade secrets. You are solely responsible for maintaining the security and confidentiality of any user usernames and passwords. You agree to notify Learnistic immediately of any unauthorized use of any Platform username or password or account or any other known or suspected breach of security. You agree to take all actions Learnistic reasonably deems necessary to maintain or enhance the security of the Platform related to Your use thereof. You understand and agree that your security obligations under this Subsection 3.04 includes Your sole responsibility for any additional users, admin accounts, and outsourcer access accounts You license from Learnistic.
3.05. Disclosure as Breach. You agree that any disclosure of the Platform to a third party constitutes a material breach of this Agreement and shall terminate the license granted by this Agreement.
3.06. Intellectual Property Markings. You agree not to remove, mutilate, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Platform.
4.01. Setup Fee. You agree to pay any Platform account setup fee at the time you initially purchase the Platform subscription.
4.02. Subscription Fee. During the initial subscription term and any subsequent renewal terms, you agree to pay the subscription fee for that term in advance. Learnistic reserves the right to raise the subscription fee at any time by providing notice to you by email at least fourteen (14) calendar days prior to the term the fee increase will take effect. You can either continue your subscription at the new subscription rate or cancel it by giving notice to the Learnistic per this Agreement.
4.03. Plan Upgrades. If Your email lists exceed the number of subscribers permitted under Your current subscription plan, you will be notified by email. You understand and agree that You will be automatically upgraded to the next level subscription plan and charged the then-current rate for that plan for the balance of the current term and any renewal terms.
4.04. Payment of Taxes. You shall pay all taxes that may be assessed on the Platform or its use, including sales and use taxes, and excise taxes, but excluding taxes based on the income of Learnistic.
4.05. Payment Methods. You agree to pay all fees under this Agreement by electronic funds transfer (ACH or bank wire), debit card, or credit card. You agree and represent that all information you provide for the purpose of becoming and staying a Platform subscriber will be accurate, complete, and current. It is your responsibility to timely update payment information with Learnistic to prevent your subscription from being cancelled for nonpayment. You expressly authorize Learnistic to charge your credit card or debit card for any and all applicable fees associated with your subscription hereunder. If you provide Learnistic with a credit card or debit card that expires during any term of your subscription, Learnistic reserves the right to charge any renewal card issued to you as a replacement without any additional consent by you.
5.01. Platform Access. Upon receipt of payment of the initial subscription fee and any setup fee, Learnistic will provide Platform access to you.
5.02. Configuration & Testing. You are solely responsible for configuring and testing the Platform for your email lists unless you have paid Learnistic a setup fee. If Learnistic provides new “beta” features to the Platform, You are also solely responsible for configuration, usage, and beta testing if you use those features.
5.03. Technical Support, Maintenance, and Upgrades. For as long as You remain a paid subscriber in good standing, Learnistic will provide technical support and You will have access to any Platform upgrades.
6.01. Warranties Disclaimer. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL LEARNISTIC BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE EVEN IF THE LEARNISTIC HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
6.02. Defect Remedies. If You discover a defect in the Platform, You agree to promptly notify Learnistic of the defect and Learnistic has verified the defect. During your Platform subscription, Learnistic shall exercise Learnistic’s sole discretion to either repair any defects in the Platform or refund the amount You paid for the Platform in the thirty (30) days prior to notifying Learnistic of the defect. You agree that Your sole and exclusive remedy for the defect described in this Subsection 6.02 shall be limited to this corrective action.
7.01. Cause for Termination. The license granted in this Agreement shall be terminated automatically and without further notice upon the occurrence of any of the following events:
(a) Unauthorized disclosure by You of Learnistic’s intellectual property to a third party, whether directly or indirectly and whether inadvertently or purposefully.
(b) Your nonpayment of any Platform setup or subscription fees provided for in this Agreement.
(d) Cessation of business by You or Learnistic.
(e) Commission by You of an event of default as defined in Subsection 7.02.
7.02. Events of Default. You commit an event of default, and this Agreement and the license granted under this Agreement shall terminate, if any of the following occur:
(a) You attempt to use, copy, license, or convey the Platform in any manner (1) contrary to the terms or conditions of this Agreement or the Guidelines, or (2) in derogation of Learnistic's proprietary rights in the Platform or its supporting documentation.
(b) You fail or neglect to perform or observe any of its existing or future obligations under this Agreement, including, without limitation, the timely payment of any sums due Learnistic within five (5) days after notice that the payment is delinquent.
(c) You make an assignment of Your business for the benefit of creditors.
(d) A petition in bankruptcy is filed by or against You.
(e) A receiver, trustee in bankruptcy, or similar officer is appointed to take control of all or part of Your property.
(f) You are adjudicated a bankrupt.
7.03. Effect of Termination. You agree that immediately on termination under Subsection 7.01, You shall immediately destroy all copies of the Platform’s supporting documentation, certify to Learnistic that you have retained no copies of the supporting documentation, and acknowledge that You may no longer use the Platform or its supporting documentation. Upon termination of the license, Learnistic's obligations under this Agreement shall cease.
7.04. Accrued Rights. Termination of this Agreement is without waiver of or prejudice to any rights and obligations that have accrued prior to termination, including any sums owed to Learnistic by You.
8.01. Interpretation. Platform subscription refunds are governed by the terms and conditions of this Agreement. To the extent there is a conflict between general refund and cancellation policies on the Website and this Agreement, the terms and conditions of this Agreement will govern.
8.02. No Refunds. THERE ARE NO REFUNDS. ALL SALES ARE FINAL. NO EXCEPTIONS.
8.03. Subscription Cancellations.
(a) If You want to cancel Your BerserkerMail subscription, please use the information in the “Contacting Us” section below to make Your cancellation request.
(b) When You cancel Your BerserkerMail subscription, You will continue to receive Your subscription benefits until the end of the current billing period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES YOU PAID FOR THE CURRENT OR PRIOR BILLING PERIODS.
Example: If we process cancellation of a monthly BerserkerMail subscription on March 20th, You will continue to receive the benefits of that subscription until March 31st and there will not be a refund of any part of the March monthly subscription fee. You will neither be billed for nor receive the benefits of the cancelled subscription after March.
(c) Do not wait until the end of a billing or subscription period to make a subscription cancellation request because such requests are typically processed within 2 to 3 business days after we receive them. Providing us with Your account/subscription number (if You have one) may speed up the process of honoring Your request. We will confirm Your subscription has been cancelled by email.
8.04. Billing Failure Cancellations. We will attempt to bill Your subscription to the primary card You have on file with us, however, if it fails, we may bill any other valid credit card You have attached to Your account.
We will attempt to contact You via email and via SMS to Your primary account phone for a period of six (6) calendar days. If You do not fix the billing issue (by providing us with a valid credit card) and bring Your account current during those six (6) days, Your account will be cancelled on the seventh (7th) day. We also reserve the right to bill any other credit card or alternative payment method You have used in the past for subscription billings to collect the outstanding balance of what You owe us prior to cancellation.
8.05. Future Subscription Ban. If Your BerserkerMail subscription is cancelled, Learnistic reserves the unilateral right to ban You (for any reason or for no reason whatsoever) from subscribing to BerserkerMail again in the future.
8.06. Your Account’s Data. You may request one (1) electronic copy of Your account’s data (e.g., your email lists and email messages) we possess within one hundred eighty (180) days of subscription cancellation. If You make Your request within thirty (30) days of subscription cancellation, there is no charge for providing You the copy. However, if You make the request between thirty-one (31) days and one hundred eighty (180) days of subscription cancellation, You understand and agree that Learnistic will charge You a processing fee of One Thousand (U.S. $1,000.00) Dollars that must be prepaid before You receive a copy of the data. Please note that after one hundred eighty (180) days have passed from the date of subscription cancellation, Learnistic will destroy Your account’s data in our possession, recovery is not possible, and Learnistic will accordingly not process requests for a copy of Your data after such time has passed.
8.07. Cancellation Request and Notice. To cancel your subscription, please use one of the contact methods listed on the Website. See https://www.BerserkerMail.com/contact. Learnistic will confirm Your subscription has been cancelled by either email or postal mail.
9.01. Assignments, Sublicenses, etc. You shall not assign or otherwise transfer Your rights under this Agreement, including the license(s) granted in this Agreement, or the Platform’s supporting documentation obtained pursuant to this Agreement, without the prior written consent of Learnistic. Any attempt to make such an assignment without Learnistic's consent shall be void. Under no circumstances shall You sell, license, sublicense, publish, display, distribute, or otherwise transfer to any third party Learnistic intellectual property or any copy thereof.
9.02. Non-Disparagement. During and after the term of this Agreement, neither Party to this Agreement nor anyone acting on their behalf shall make any derogatory or disparaging statements about the other, or its past or present direct or indirect parent companies or its past or present subsidiaries or affiliates, or any of its past or present officers, directors, employees, consultants, agents, representatives, successors or assigns, or directly or indirectly take any action which is intended to embarrass any of them. This provision for non-disparagement shall survive termination of this Agreement.
9.03. Force Majeure. Learnistic shall not be liable for failure to perform any of its obligations under this Agreement during any period in which such Learnistic cannot perform due to fire, earthquake, flood, or other natural disaster, epidemic or pandemic, explosion, casualty, war, terrorism, embargo, riot, civil disturbance, act of public enemy, act of God, or the intervention of any government authority, or similar cause beyond Learnistic’s control, and provided further that You may terminate this Agreement if such force majeure condition has continued for a period of ninety (90) consecutive days.
9.04. Governing Law. The Parties acknowledge that this Agreement has been made in the United States of America and agree that it shall be construed pursuant to the substantive laws of the State of Florida and the United States of America.
9.05. Limitations Period. No mediation, arbitration, or other action under this Agreement, unless involving death or personal injury, may be brought by either party against the other more than three hundred sixty-five (365) days after the act or omission occurred upon which it is based.
9.06. Dispute Resolution. You agree that, excluding claims of intellectual property infringement, any legal action or proceeding between them for any purpose concerning this Agreement or the Parties' obligations hereunder, will first attempt to be resolved with the help of a mutually agreed-upon online mediator. Any costs and fees (other than attorney fees) associated with the mediation will be shared equally by each of the Parties. If it proves impossible to arrive at a mutually satisfactory solution through online mediation, You agree that any dispute arising out of or in connection with this Agreement (excluding claims of intellectual property infringement), including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the commercial rules of the American Arbitration Association, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Orange County, Florida, USA. The language to be used in the arbitral proceedings shall be English. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so. In no case shall You have the right to go to court or have a jury trial. You will not have the right to engage in pre-trial discovery except as provided in the rules. You will not have the right to participate as a representative or member of any class of claimants pertaining to any claim subject to arbitration. The arbitrator's decision will be final and binding with limited rights of appeal.
9.07. Limitation of Liability. YOU UNDERSTANDS THAT LEARNISTIC IS USING CLOUD HOSTING AND OTHER THIRD-PARTY SERVICES TO PROVIDE PLATFORM SERVICES TO YOU AND THAT THESE THIRD PARTIES ARE BEYOND THE CONTROL OF LEARNISTIC. YOU MAY EXPERIENCE SUSPENSION OF SERVICES AND/OR DATA LOSS BECAUSE OF PLATFORM OUTAGES AND MAINTENANCE BY THESE THIRD PARTIES. YOU MAY ALSO EXPERIENCE TEMPORARY SUSPENSION OF SERVICES WHILE LEARNISTIC PERFORMS MAINTENANCE TASKS. TO THE EXTENT PERMITTED BY LAW, LEARNISTIC AND ITS PARTNERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM YOU’S USE OF OR INABILITY TO ACCESS THE PLATFORM OR USE ANY OF THE SERVICES OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES. LEARNISTIC DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO: (I) ANY THIRD PARTY CLAIMS ARISING FROM OR BASED ON YOUR USE OF THE PLATFORM OR SERVICES; (II) ACCESS DELAYS OR ACCESS INTERRUPTIONS; (III) DATA NON-DELIVERY OR DATA MIS-DELIVERY; (IV) ACTS OF GOD; (V) THE UNAUTHORIZED USE OR MISUSE OF YOU’S ACCOUNT NAME OR PASSWORD; (VI) ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICE(S) PROVIDED UNDER THIS AGREEMENT; (VII) THE DELETION OF OR FAILURE TO STORE DATA OF ANY KIND; (VIII) DELAYS OR INTERRUPTIONS OF YOUR EMAIL MARKETING CAMPAIGNS; OR (IX) PROCESSING OF ANY AUTHORIZED MODIFICATION TO YOUR ACCOUNT OR YOUR FAILURE TO PAY ANY SUBSCRIPTION FEES, SETUP FEES, OR OTHER FEES. YOU AGREE THAT LEARNISTIC’S ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICES DURING THE THIRTY (30) DAYS PRECEDING THE DATE THE CLAIM AROSE.
9.08. Integration. The Parties acknowledge and agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and that it supersedes and cancels all previous written and oral agreements and communications relating to the Platform subscription and license that is the subject matter of this Agreement.
9.09. Headings and Construction. The section and other headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. All references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any party hereto or the drafter(s) of this Agreement.
9.10. Notices. Any notice required or permitted by this Agreement to be given to either Party shall be deemed to have been given if in writing and delivered by email or mailed by first-class mail postage prepaid and addressed to the recipient Party at the last known address for said Party.
9.11. Marketing. The Parties shall not publicly disclose any of the specific terms or conditions of this Agreement. However, Learnistic may identify You as a Platform user to third parties.
9.12. Read and Understood. Each Party acknowledges that it has read and understands this Agreement and agrees to be legally bound by its terms.
9.13. No Agency. No joint venture, partnership, employment, or agency relationship exists between the Parties as a result of this Agreement or use of the Platform.
9.14. No Third-Party Beneficiaries. The Parties do not intend to create in any other individual or entity the status of third-party beneficiary, and this Agreement shall not be construed so as to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the Parties to this Agreement, and shall inure solely to the benefit of such Parties. The Parties to this Agreement intend and agree that only they shall have any legal or equitable right to enforce this Agreement, or to seek any remedy arising out of its breach.
9.15. Post-Termination Survival of Provisions. The following provisions will survive termination: all definitions, Your accrued financial obligations, and the following Subsections: 1.02 (Confidentiality); 1.04 (Intellectual Property Ownership); 1.07 (Third-Party Infringement); 3.01 (Title to Platform); 3.02 (Title to Your Data); 3.03 (Your License to Us); 6.01 (Warranties Disclaimer); 7.03 (Effect of Termination); 7.04 (Accrued Rights); 9.02 (Non-Disparagement); 9.05 (Limitations Period); 9.06 (Dispute Resolution); 9.07 (Limitations on Recovery); 9.10 (Notices); 9.11 (Marketing); 9.15 (Post-Termination Survival of Provisions); and 9.16 (Severability).
9.16. Severability. If any part of this Agreement is declared to be invalid by any court of competent jurisdiction, that part of the Agreement shall be severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
9.17. Nonwaiver. The Parties agree that a waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent breach or default. The Parties also agree that no failure to exercise or delay in exercising any right under this Agreement on the part of either Party shall operate as a waiver of the right.
9.18. Amendments. This Agreement shall be modified only by a written agreement executed by persons authorized to execute contracts on behalf of the Parties.