INDIRECT PURCHASE OF LINE SERVICE AGREEMENT

1. Definitions

The definitions of capitalized terms set forth in this Article 1 of this Agreement will apply to this Agreement (in addition to terms expressly defined elsewhere herein).

1.1 “Advertising Fee” or "Service Fee" shall mean the total advertising fee amount payable by Corporate Client to LINE through Agency under the Insertion Order (as defined below) and its amendment, for using advertising space on relevant LINE Services which shall be calculated by the CPM Method (as defined below) or such other calculation method designated by LINE, as agreed upon by Corporate Client through Agency.

1.2 “Billing Commitment” shall mean the commitment of the Agency to achieve certain amount of Service Fee during the Term (as defined below) of the Agreement.

1.3 "Corporate Client" shall mean a client who will purchase or has purchased the relevant LINE Service(s) indirectly from LINE through Agency. Corporate Client may also be referred to as “Advertiser” in a relevant Insertion Order (as defined below).

1.4 "CPM Method" shall mean the Service Fee calculation method of Cost Per Thousand Views for calculating online advertising fee charged on Corporate Client through Agency who indirectly purchased advertising space on applicable LINE Services.

1.5 “Discount” shall mean a reduction of Advertising Fee given by LINE to Agency which will be further detailed in Article 6.

1.6 "Insertion Order(s)" shall mean the agreement entered into by and between (i) LINE of the one part and (ii) Agency or the Corporate Client of the other part, governing the relationship between LINE and the Corporate Client and/or Agency in connection with the relevant LINE Service(s). For the avoidance of doubt, Insertion Order(s) may be generated, executed and kept in an electronic form as deemed appropriate by LINE.

 

1.7 "Intellectual Property Rights" shall mean all patents, designs, utility models, copyrights, know-how, trade secrets, trademarks, service mark, trade dress and any other intellectual property rights regardless of whether such rights have been registered in any country.

1.8 "LINE Affiliate" shall mean any legal entity that controls or is controlled by or under common control with LINE. For the purposes of this definition, the term "control" means (i) beneficial ownership of more than fifty percent (50%) of the voting securities of a corporation or other business organizations with voting securities or (ii) more than a fifty percent (50%) interest in the net assets or profits of a partnership or other business organizations without voting securities. In relation to LINE, Affiliates shall refer to, but not limited to, LINE Corporation (JP) and LINE Plus Corporation (KR).

1.9 "LINE General Service" shall mean the instant message and free call service for Users provided by LINE and/or any LINE Affiliates through any access equipment, including PC, tablet device and mobile.

1.10 "LINE Partner Service" shall mean Official Account, Sponsored Sticker, Free Coin, Official Home, Live Chat, Live Cast, On Air, and/or any other services specially customized for Corporate Client, and as specified in Specific Terms of the Official Accounts.

1.11 "LINE Services" shall mean the LINE General Service, the LINE Partner Service, the Business Connect Service, the LINE TV Advertisement Service, the LINE Timeline Advertisement Service, the LINE Today Advertisement Service, the LINE Points Ads Service, the LINE Points Code and any other services to be provided by LINE or its Affiliate as specified in the relevant Exhibits to this Agreement, and a "LINE Service" shall mean each of them.

1.12 "Specific Terms and Guidelines" shall mean specific terms and guidelines for the the applicable Service and available online at:

https://www.linebiz.com/id-en/terms-and-policies/

1.13 "Territory" shall mean the Republic of Indonesia.

1.14 "Users" shall mean registered users of the LINE General Service.

2. Scope of Agreement 

2.1 Agency hereby agrees to purchase LINE Service for its Corporate Client (indirect purchase) and further assits LINE  on the sales promotion work or such similar activities on a non-exclusive basis for the limited purposes of promoting the sale of the LINE Service(s) in the Territory (the "Sales Promotion Cooperation"), in accordance with the terms and conditions set forth in this Agreement and the Insertion Order. Agency agrees not to use a third party to perform its obligations pursuant to this Agreement without the prior written consent of LINE. In case that the assignment or transfer of Agency’s rights and obligations is allowed (impliedly or explicitly) to the Group Company of Agency, the Agency shall in all instances remain fully responsible for the proper and timely completion of the duties and obligations contemplated under this Agreement and for the performance of such assignee/Group Company of Agency as if the services have been performed by the Agency itself. This Agreement shall not extend to any other business or service or product of LINE. Subject to Article 2.2 below, at no time during the Term (as defined below) of this Agreement or after the termination or expiration hereof, shall the Agency present itself as an agent or employee of LINE.

2.2 It is expressly agreed that Agency has no authority to enter into and/or terminate agreements or make any commitments on LINE's behalf, nor shall Agency collect any payments or any benefits from any third party for or on behalf of LINE, unless LINE has granted to the Agency a prior written consent or a written Power of Attorney.

2.3 LINE shall be entitled to source and procure any potential clients or Corporate Client by itself, or enter into any agreement which may be identical with or similar to this Agreement with any other person.

3. General Obligations of the Agency

3.1 Agency shall provide LINE with any and all necessary information, services, assistance and cooperation needed for the implementation of the scope of the Agreement, which shall consist of, but not be limited to, the following:

(i) to act as an intermediary between LINE and Corporate Clients in the purchase of LINE Services;

(ii) using its best efforts to promote and procure the sale of relevant LINE Services and to promote the trade and interests of LINE in a commercially reasonable manner;

(iii) providing LINE with relevant market information and other material that may affect the sale of LINE Services in the Territory;

(iv) selling and marketing the relevant LINE Services to potential clients or existing clients or Corporate Client in accordance with specific instructions from LINE including the prices, deliveries, warranties and the most recent terms of the Insertion Order and Specific Terms and Guidelines;

(v) responding to inquiries from Corporate Client and providing any assistance required for a Corporate Client to purchase the relevant LINE Services and providing data, report, and the Specific Terms and Guidelines provided by LINE to the Corporate Client, if applicable;

(vi) providing promptly and no later than twenty (20) days from the execution of this Agreement, a counterpart of a fully executed Insertion Order between (i) LINE and (ii) Agency, and acknowledged by Corporate Client (if applicable);

(vii) if applicable, executing the Insertion Order for and on behalf of LINE where LINE separately grants power to Agency to enter into and execute the Insertion Order, for and on its behalf, under the Power of Attorney;

(viii) cooperating, complying with, procuring and causing the Corporate Client to cooperate and comply with the Specific Terms and Guidelines available online at:

https://www.linebiz.com/id-en/terms-and-policies/

for the applicable Services, as well as all terms and conditions of this Agreement, the Insertion Order, or the electronic Insertion Order (e-I/O), (where applicable);

(ix) setting out the foregoing obligations of the Agency and the Specific Terms and Guidelines as binding terms in an agreement executed between the Agency and each Corporate Client; and

(x) providing reasonable cooperation with LINE for the settlement of any claim raised by the Corporate Clients, Users, or customers in the Territory, provided that the Agency shall have no authority to settle any claims or disputes on behalf of LINE.

3.2 Agency shall ensure and make timely payment of the Service Fee and all other moneys owed to LINE pursuant to Article 6 below.

3.3 In case where Corporate Client do not execute any Insertion order, or where Agency signs any Insertion Order for Corporate Client with an authority granted in a Power of Attorney issued by the Corporate Client, the Agency agrees to be responsible and liable for any and all relevant expenses and damages arising from such actions on behalf of the Corporate Client.

4. General Obligations of LINE

4.1 LINE shall provide guidance to Agency in carrying out Agency 's obligations under this Agreement.

4.2 LINE shall supply the necessary brochures, documentation, and other materials required for the promotion and marketing of the relevant LINE Services.

4.3 LINE is not obligated to provide LINE Services for the Corporate Client in case any provision of Article 3 above is violated or not complied by Agency.

5. Terms of Sales

5.1 Agency shall (and where applicable shall ensure that Corporate Client) fully comply with all the instructions and directions given by LINE that are specific to the relevant LINE Services provided for each Corporate Client in the Territory with whom Agency has entered into an agreement, such instructions and directions include but are not limited to instructions and directions to book the request for Corporate Client as well as to confirm the booking and payment of the Service Fee from such Corporate Client to Agency and thereafter to LINE. Agency shall present to, and receive from, each Corporate Client all proposals and inquiries for the relevant LINE Services.

5.2 Agency shall utilize and offer the most current terms of the Insertion Order as provided by LINE for its promotion of the relevant LINE Services.

5.3 Agency shall ensure and procure that all agreements executed or entered into by and between Agency and each of the Corporate Client comprise and incorporate all the terms and conditions of the relevant Specific Terms and Guidelines and Agency shall procure the Corporate Client to fully abide or comply with such Specific Terms and Guidelines.

5.4 LINE reserves the right in its sole discretion to accept or reject any order or offer and to cancel or delay any order, in whole or in part, at the time of offer, without incurring any liability to the Agency for commissions, damages or otherwise.

5.5 LINE reserves the right to amend, revise, or update from time to time the contents, including but not limited to the terms and conditions set forth in any Specific Terms and Guidelines, at its sole discretion, and Agency shall fully cooperate and comply, and cause any Corporate Client that it enters into an agreement with or that it enters into an agreement for and on behalf to cooperate and comply, with such amendment, revision, or update upon receiving written notice thereof from LINE. Upon receiving such written notice, Agency shall immediately utilize or implement and also cause the Corporate Client to utilize or implement, the amended, revised or updated terms. In the event that Agency fails to do so, Agency will be responsible for all the relevant expenses and damages arising from such failure.

6. Service Fee and Discount

6.1 As sole compensation for the cooperation of Agency under this Agreement, Agency shall be entitled to receive an amount of Discount in a progressive tariff as follows depending on the Billing Commitment made by Agency:

Tier

Discount

Buying (IDR)

Period

1

10%

Under 1 Billion (Minimum Buying: IDR 60 Mio)

December 2020

2

15%

1 Billion

3

20%

2,5 Billion

4

25%

5 Billion

5

30%

7,5 Billion

6.2 The Service Fee that Corporate Client must pay to LINE through Agency shall be the agreed Service Fee deducted with the applicable Discount which shall be further detailed in an Insertion Order. 

6.3 The above tariffs shall be applicable only until December 31, 2020 and afterward LINE must issue a new tariff and notificy such new tarrifs to the Agency and/or Corporate Client.

7. Intellectual Property

7.1 LINE hereby grants to Agency for the Term of this Agreement and/or the relevant Insertion Ordder,  and subject to the terms and conditions herein, a non-exclusive, non-transferable, revocable right to display and/or use LINE's designated logo, trademark, brand, company name, domain name, link to a web page or other proprietary name, identifier or mark or marketing material solely in connection with the marketing, advertisement, other promotional and sales activities related to this Agreement only within the Territory and in accordance with the terms and conditions of this Agreement and any guidelines provided by LINE from time to time. Agency is expressly prohibited from entering into any contract or agreement on behalf of LINE with any entity or person other than as permitted under this Agreement.

7.2 LINE warrants and represents that Agency 's use of the rights granted in this Article 7 will not infringe the rights of any third party.

7.3 Both Parties agree neither this Agreement, nor anything contained herein, shall be construed as a sale of any Intellectual Property Rights or title therein or thereto.

7.4 Agency shall inform LINE promptly if Agency becomes aware of any infringement of Intellectual Property Rights of LINE or any passing off or any unfair, misleading, or deceptive conduct or trade practices by any third party with respect to the trademarks, and shall give LINE all information, advice, and assistance as may reasonably be required for, or in relation to, any action, claim, or proceedings.

8. Confidentiality

8.1 All confidential information disclosed by a Party (the “Disclosing Party”) under this Agreement and so designated at the time of disclosure (the “Confidential Information”) must be maintained in confidence by the other party (the “Receiving Party”) and must not be used for any purpose other than explicitly permitted under this Agreement. Regardless of whether so marked or identified, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party shall also be considered Confidential Information of the Disclosing Party.

8.2 The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who need to know such Confidential Information for the Receiving Party’s performance of this Agreement, and provided that such employees are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party shall be responsible for any breach of such confidentiality obligations by itself or its employees.

8.3 The Parties shall treat the existence and contents of this Agreement as Confidential Information of the other party and comply with duty of confidentiality provided in this Article 8.

8.4 The obligations of this Article 8 shall not apply to information that:

(i)   was in the public domain at the time of disclosure to the Receiving Party;

(ii)   becomes part of the public domain after disclosure, by publication or otherwise, through no fault of the Receiving Party;

(iii) was in the Receiving Party’s possession at the time of disclosure to the Receiving Party, without acquiring, directly or indirectly, from the Disclosing Party;

(iv) the Receiving Party acquires from its own research and development, independent of disclosure from the Disclosing Party;

(v)    the Receiving Party receives from a third party who had the right to make such disclosure without any confidentiality restrictions; or

(vi)  is disclosed in compliance with applicable judicial or administrative proceedings, provided that the Receiving Party notifies the Disclosing Party of such required disclosure, promptly and in writing.

8.5 Each Party recognizes and acknowledges that the other Party would not have any adequate remedy at law for the breach by the other Party of any one or more of its obligations contained in Article 8, and agrees that in the event of any such actual or potential breach, the non-breaching party may, in addition to the other remedies which may be available to it, file a suit in equity to enjoin the other party therefrom.

8.6 The obligations under this Article will survive from the termination of the Agreement.

9. Limitation of Liability

9.1 The Parties acknowledge and agree that LINE shall not be responsible for any loss or damage incurred to Agency in connection with all indemnities, expenses, penalties, or interest that Agency shall be liable for to any person in consequence of the performance of Agency's duties and obligations hereunder on its part.

9.2 To the extent permitted by law, LINE's liability for damages shall in any case be limited to direct damages caused by LINE's willful misconduct or gross negligence. LINE's total and aggregate liability to Agency out of, or in connection with, the Agreement, whether in contract, negligence, statute, or otherwise, shall, to the extent permitted by law, be limited to the payment of direct damages. All other liabilities than those expressly set out in this Article 9 are expressly excluded; in particular, LINE shall not be liable without limitation for any indirect loss or consequential damages, loss of profit, or loss of data, goodwill, business opportunity, or anticipated savings.

10. Indemnification

10.1 Agency shall indemnify, defend, and hold LINE (and its Affiliates, stockholders, officers, directors, employees, and agents) harmless against any and all claims, losses, liabilities, penalties, costs, and expenses (including attorney fees, court costs, and other expenses of litigation or administrative proceedings), damages, and third-party claims in connection with any acts or statements or omissions or failures to act by Agency, misrepresentation and breach of warranties by the Agency, the use or infringement of LINE's Intellectual Property Rights or its own breaches of this Agreement, including, without limitation, any claims by third parties for which LINE might be liable under applicable law. Agency shall promptly give LINE notice of the existence of any such claim and, on request, shall furnish LINE with copies of any documents relating to such matters as LINE may request. Agency shall also indemnify LINE (and its Affiliates, stockholders, officers, directors, employees, and agents) for any damages that LINE (and its Affiliates, stockholders, officers, directors, employees, and agents) may incur due to actions and/or inactions by the Corporate Client that may violate the intentions within this Agreement, the Insertion Order, and/or any applicable laws and regulations.

10.2 These indemnities shall continue in full force and effect subsequent to, and notwithstanding, the expiration or termination of this Agreement for any reason. LINE need not seek recovery from any insurer or other third party, or otherwise mitigate its losses and expenses in order to maintain and fully recover a claim against Agency hereunder; to pursue a recovery or mitigate a loss shall not reduce or alter the amounts that LINE may recover from Agency under this Article 10.

11. Representations and Warranties

11.1 Each of the Parties represents and warrants that:

(i) it is duly organized and existing under the laws of the relevant jurisdiction where its registered office is located;

(ii)  it has the right, power and authority to enter into this Agreement;

(iii) it has obtained or will obtain all required authorizations, approvals, licenses or permits from all authorities, governmental in order for it to enter into and perform its obligations under this Agreement;

(iv) it has not acted and will not act in any manner, nor has it entered into or will enter into any agreement or transaction, which is in any way or form inconsistent with this Agreement;

(v) the entry into and performance of its obligations under this Agreement does not violate any agreement existing between it and any other person or entity; and

(vi) shall comply with all applicable laws, rules and regulations while performing this Agreement.

11.2 The Agency additionally represents and warrants that it shall have obtained the right, power and authority to enter into the Insertion Order(s) and any other agreements or documents for the Corporate Client (as applicable) before the execution of each relevant document.

11.3 KECUALI DINYATAKAN SECARA TEGAS DALAM PERJANJIAN INI, SEJAUH DIIZINKAN OLEH UNDANG-UNDANG YANG BERLAKU, LAYANAN DAN PLATFORM YANG DISEDIAKAN OLEH LINE SEBAGAI HOST YANG NETRAL DAN ATAS DASAR “SEBAGAIMANA ADANYA” ATAU “SEBAGAIMANA TERSEDIA”, DAN LINE MENOLAK: (I) SEMUA PERNYATAAN ATAU JAMINAN, BAIK YANG DINYATAKAN SECARA TEGAS ATAU TERSIRAT, MENGENAI LAYANAN, WEBSITE, ATAU YANG BERHUBUNGAN DENGAN PERJANJIAN INI, TERMASUK SEGALA JAMINAN PENJUALAN YANG TERSIRAT, KESESUAIAN UNTUK TUJUAN TERTENTU ATAU YANG MUNCUL SEHUBUNGAN ATAU PELAKSANAAN; (II) SEGALA JAMINAN YANG MENYATAKAN BAHWA PLATFORM, PRODUK KAMI, LAYANAN ATAU INFORMASI AKAN BEROPERASI TANPA TERGANGGU, BEBAS DARI KESALAHAN, ATAU BAHWA SERVER AKAN BEBAS DARI VIRUS, SPYWARE, MALWARE ATAU KOMPONEN BERBAHAYA LAINNYA; DAN (III) DAN TANGGUNG JAWAB ATAS METODE KEAMANAN DAN PROSEDUR PERLINDUNGAN PIHAK KETIGA LEBIH LANJUT, KAMI TIDAK MEMBUAT PERNYATAAN DAN JAMINAN SEHUBUNGAN DENGAN HASIL YANG DAPAT DIPEROLEH DARI LAYANAN. TIDAK ADA SARAN ATAU INFORMASI BAIK LISAN MAUPUN TERTULIS, YANG KAMI BERIKAN MELALUI PLATFORM, WEBSITE, DAN LAYANAN LINE TIDAK MEMBUAT SUATU JAMINAN, PERNYATAAN DAN/ATAU GARANSI YANG TIDAK SECARA TEGAS DINYATAKAN DALAM PERJANJIAN INI.

12. Term and Termination

12.1 This Agreement shall become effective upon Effective Date until the first anniversary of the Effective Date and must honor the effectiveness of the last relevant Insertion Order, whichever occurs later (the "Term"), unless earlier terminated under this Article 12. The Parties hereto shall be subject to the auto-renewal for subsequent years under the same conditions unless either Party informs the other to the contrary in writing at least thirty (30) days in advance of the expiration of the Agreement.

12.2 Either Party may terminate this Agreement at any time for convenience, without incurring any liability to the other Party, by providing written notice to the other Party, at least thirty (30) days in advance of the date on which termination is to be effective.

12.3 Upon termination of this Agreement, neither Party shall be discharged from any obligations nor liabilities incurred prior to termination to the other party under this Agreement, unless otherwise agreed in writing by the Parties.

13. ANTI-CORRUPTION PROVISION

13.1 Agency warrants and represents to LINE that Agency and its parent, subsidiary and affiliated companies, its and their officers, directors, employees, agents and other representatives of Agency (in this Article, “Affiliates”) have not performed nor will perform any of the following acts (each, an “Act of Corruption”, Foreign Corrupt Practices Act (“FCPA”) of 1977) in connection with this Agreement, any sale made hereunder, any fees paid or to be paid hereunder, or any other transactions involving the business interests of LINE: pay, offer or promise to pay, or authorize the payment of, any money, or give or promise to give, or authorize the giving of, any services or anything else of value, either directly or through a third party, to any official or employee of any governmental authority or instrumentality, or of a public international organization, or of any agency or subdivision thereof, or to any political party or official thereof or to any candidate for political office for the purpose of (a) influencing any act or decision of that person in his official capacity, including a decision to fail to perform his official functions with such governmental agency or instrumentality or such public international organization or political party, (b) inducing such person to use his influence with such governmental agency or instrumentality or public international organization or political party to affect or influence any act or decision thereof or (c) securing any improper advantage.

13.2 Agency agrees that it will, and will cause its Affiliates, to keep accurate books, accounts, records and invoices and that all payments made to Agency or Affiliates will only be made after receipt by LINE of detailed and accurate invoices supported by detailed records.

13.3 In the event there is a suspicion that Agency or Affiliates have committed an Act of Corruption, Agency promptly will notify LINE in writing of the details of such suspicion and will immediately cease the Act of Corruption or cause the Affiliates to cease the Act of Corruption. Agency will disclose to LINE such information as requested by LINE regarding such Act of Corruption and will implement such appropriate remedial measures as requested by LINE

13.4 In order to confirm the compliance of Agency with the preceding clauses of this Article, LINE and/or representatives of LINE may audit Agency and Affiliates, including reasonable questioning of same. Agency will cooperate with such audits within reasonable limits.

13.5 If Agency or Affiliates violate any part of this Article, LINE may in its sole discretion cancel all obligations by LINE to pay any reimbursements, fees or other compensation to Agency and may choose to take any or all of the following additional actions:

Immediately terminate this Agreement;

(ii)        Recoup any amounts including but not limited to fees or other compensation previously paid by LINE under this Agreement;

(iii)       Require Agency to indemnify LINE for any damages, losses and expenses incurred by LINE; and/or

(iv)       Require Agency to comply with any reasonable requests by LINE to remedy violations of this Article.

Further, LINE will not be liable for any loss, damage, claim, liability, cost, or expense incurred by Agency arising out of or related to such actions.

13.6 LINE hereby warrants and represents that LINE has informed Agency on the existence of LINE Group’s Code of Conduct or the interest of this provision which can be accessed at:  

https://terms.line.me/line_PedomanPerilaku_id?lang=id

13.7 Breach of this 13 shall be a material breach of this Agreement.

14. General Provisions

14.1 Assignment.  Neither Party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties to any third party without the prior written consent of the other Party. Any attempt to assign or transfer this Agreement other than in accordance with this provision shall be null and void. Subject to the restrictions on assignment and transfers set forth herein, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.

14.2 Governing Law.  The substantive laws of the Republic of Indonesia without regard to any choice of law or conflict of laws rules or provisions, shall govern any disputes arising out of or related to this Agreement, in construction and enforceability. Each Party irrevocably and unconditionally agrees that any dispute arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of South Jakarta District Court.

14.3 Severability. All provisions of this Agreement are severable. If any provision or portion hereof is determined to be unenforceable, the rest of this Agreement shall remain in effect, while such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.

14.4 Consultation. With respect to any matter not provided in this Agreement or where the Specific Terms and Guidelines are silent, the Parties shall enter into good faith discussions to resolve in an expeditious manner any issues that may arise in this regard.

14.5 Construction. The headings contained in this Agreement are for convenience only and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including, but not limited to”.

14.6 Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed an original, but all of which together shall constitute the same instrument. For the purposes of this Agreement, transmitted copies (reproduced documents that are transmitted via photocopy, facsimile, or any other process that accurately transmits the original) are considered equivalent to original documents.

14.7 Language. This Agreement is prepared in bilingual of English and Indonesian languages. The controlling version of this Agreement shall be in the English language, and such English version of this Agreement shall govern and control in the case of any dispute between the Parties regarding the interpretation or application of the terms and conditions of this Agreement. In such event, the Indonesian language shall automatically be deemed to have adjusted to conform with its relevant English text.

14.8 Notice. Unless otherwise specifically provided herein, all notices, consents, requests, demands, and other communications required or permitted hereunder:

(i) shall be in writing in the English and Indonesian languages;

(ii) shall be sent by messenger, certified or registered mail, a national overnight delivery service for next business day delivery, or email, charges prepaid as applicable, to the appropriate address or number set forth in this Agreement; and

(iii) shall be deemed effective upon receipt by the addressee, as evidenced by:

(a)   a receipt executed by the addressee (or a responsible person in his or her office), the records of the person delivering such communication, or a notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, mail, or express delivery service; or

(b)   a receipt or other evidence of transmittal, generated by the sender’s facsimile or email software showing that such communication was sent to the appropriate number or email address on a specified date, if sent by facsimile or email.

14.9 Force Majeure.  Notwithstanding any other provision of this Agreement, any default, delay, or failure to perform on the part of either Party shall not be considered a breach of this Agreement if such default, delay, or failure to perform is entirely due to causes beyond the reasonable control of the party charged with such default (the “Affected Party”). The delay, or failure, including general strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities, actions or inactions of suppliers, epidemics, war, embargoes, severe weather, fire, earthquake, and acts of God (“Force Majeure”). The Affected Party shall use reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the default, delay or failure to perform and to resume performance as soon as practicable. If the Force Majeure cannot be remedied within seven (7) working days by the Affected Party, then the other Party may terminate the Agreement effective immediate.

14.10 Independent Contractors.  Unless specified otherwise herein, the relationship of the Parties is that of independent contractors. Neither Party is an agent or partner of the other. Neither Party has or shall represent to a third party that the party has power or authority to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party, for any purpose whatsoever.

14.11 Entire Agreement. This Agreement (including all schedules and exhibits, as updated from time to time) constitutes the entire agreement between the Parties. This Agreement is the complete and exclusive statement of the terms of the understanding of the Parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, commitments, proposals, representations, or communications, oral or written.

14.12 Amendment. The Parties shall not modify, amend or otherwise change this Agreement in any manner, except by a written instrument executed by both Parties.

14.13 Waiver.  Any Party's failure at any time to insist upon strict performance of any term, condition, or covenant contained in this Agreement shall not be deemed a waiver of such Party's right at any time thereafter to insist upon strict performance thereof. All waivers must be in writing signed by the waiving party.

Last updated on: September 16th, 2020