ZIPPITY, INC

SOFTWARE SUBSCRIPTION TERMS AND CONDITIONS

ZIPPITY, INC

SOFTWARE SUBSCRIPTION TERMS AND CONDITIONS

  1. General.

The terms and conditions contained herein, together with any terms contained in Zippity’s order form or proposal to which these terms and conditions are attached or which reference the terms and conditions (the “Proposal”) (which Proposal shall control over any conflicting terms), constitute the entire agreement (the “Agreement”) between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by Zippity of the order, or Client’s acceptance of Zippity’s Proposal, is expressly limited to and conditioned upon Client’s acceptance of these terms and conditions, payment for or acceptance of any performance by Zippity being acceptance. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Client, to which terms Zippity hereby objects.

Unless the context otherwise requires, as used herein: “Additional Services” means all technical and non-technical services performed or delivered by Zippity, including, without limitation, training, implementation, customization and other professional services, but excluding the SaaS Services and Support and Maintenance Services; “Administrative User” means an Authorized User who is identified by Client to obtain logon credentials to access the SaaS Services;; “Authorized User” means any individual or entity who is authorized or enabled by Client to access and use the SaaS Services under the rights granted to Client pursuant to this Agreement and for whom access to and use of the SaaS Services has been purchased hereunder; “Documentation” means Zippity’s electronic and/or hardcopy user guide for the SaaS Services, as updated by Zippity from time to time; “End User” means any Authorized User who is not an Administrative User, including, typically, Client’s customers receiving products and services from Client facilitated by the SaaS Service; “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs; “SaaS Services” means Zippity’s Customer Onsite Experience platform, including but not limited to the Mobile and Booking Scheduling Engine, which is made available as software-as-a-service applications pursuant to a Subscription and is further described in each applicable Proposal, and Zippity’s Messaging Platform; “Services” means the SaaS Services, Support and Maintenance Services and Additional Services; “Subscription” means a subscription to access and use the SaaS Services set forth in a Proposal; “Subscription Term” means the term of a particular Subscription set forth in a Proposal; and “Support and Maintenance Services” means support and maintenance services performed or delivered by Zippity relating to the SaaS Services.

  1. Prices. 

(a) Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof.

(b) The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes (“Sales Taxes”) which may now or hereafter be applicable. Client agrees to pay or reimburse any such taxes which Zippity or its suppliers are required to pay or collect. If Client is exempt from the payment of any tax or holds a direct payment permit, Client shall, upon order placement, provide Zippity a copy, acceptable to the relevant governmental authorities of any such certificate or permit.

(C) Prices for Additional Services, if any, at the customer site do not include travel or other incidentals.   

  1. Payment.

(a) Client shall pay Zippity fees in the amounts set forth in each applicable Proposal, including Sales Taxes and other applicable taxes, by credit card, electronic payment or wire transfer as designated by Zippity in the Proposal. Fees for SaaS Services are due in advance for the applicable period. Unless specified otherwise in a Proposal, fees shall be due and payable on receipt. Zippity will charge Client on or about the monthly anniversary of the initial Subscription date. Except as otherwise specified herein or in the applicable Proposal, all payment obligations are non-cancelable and all payments made are non-refundable.

(b) In the event that the SaaS Services are configured to allow Client to calculate and collect Sales Taxes and other applicable taxes from Client’s customers and other end users, Client shall be fully and solely responsible for collecting such taxes from its customers and remitting such taxes to the relevant governmental authorities.  Any tax calculated using the SaaS Services is for Client’s convenience only; Zippity is not responsible for the accuracy of any such calculation.

(c) Client shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus attorneys’ fees and court costs incurred by Zippity in connection with collection. If Client’s account is more than thirty (30) days past due, in addition to any other rights or remedies it may have under this Agreement or by law, Zippity reserves the right to suspend the SaaS Services, without liability to Client, until such amounts are paid in full.

  1. Changes.

Any changes requested by Client affecting the ordered scope of work must be accepted by Zippity and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.

  1. Use of the SaaS Services.

(a) Provision and Access; Documentation License.  Subject to the provisions of the applicable Proposal, payment of the fees stated therein and compliance with all other terms and conditions of this Agreement, Zippity hereby grants Client: (a) a limited, non-transferable, non-exclusive right to access and use the SaaS Services during the applicable Subscription Term, solely for access and use by Authorized Users for Client’s internal business purposes in accordance with the terms and conditions herein; and (b) a limited, non-transferable, non-exclusive license to use the Documentation during the applicable Subscription Term, solely for Client’s internal business purposes in connection with its authorized access and use of the SaaS Services in accordance with the terms and conditions herein.  Zippity shall use commercially reasonable efforts to make the SaaS Services available during the Term in accordance with this Agreement and the Documentation.  

(b) Authorized Users, including Administrative Users and End Users.  Zippity will issue unique logon identifiers and passwords to certain Administrative Users, including an employee designated by Client to act as its service representative (the “Representative”).  The Representative will then be able to provide logon credentials to additional Administrative Users selected and overseen by the Client and the Representative. Client shall ensure that each Authorized User will use the SaaS Services solely in accordance with the terms and conditions of this Agreement.  Client is responsible and liable for all uses of the SaaS Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access is permitted by or in violation of this Agreement.  Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client.   Without limiting the generality of the foregoing, Client shall ensure that all End Users enter into terms governing their use of the SaaS Services and the data submitted via the SaaS Services sufficient to protect and enforce Zippity’s rights and remedies under this Agreement, which terms shall be subject to any reasonable modifications approved in advance by agreement of Client and Zippity (such modifications not to be unreasonably rejected by either party).

(c) Restrictions. Client and its Authorized Users shall not: (a) sell, lease, license or sublicense the SaaS Services or Documentation; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the SaaS Services or any software included in the SaaS Services or Documentation; (c) provide, disclose, divulge or make the SaaS Services or Documentation available to, or permit use of the SaaS Services or Documentation by, any third party (except as expressly provided for herein); (d) copy or reproduce all or any part of the SaaS Services or Documentation (except as expressly provided for herein); (e) knowingly interfere, or attempt to interfere, with the SaaS Services or Documentation in any way; (f) use the SaaS Services or Documentation to engage in spamming, spoofing or any other fraudulent, illegal or unauthorized use of the SaaS Services or Documentation; (g) knowingly introduce into or transmit through the SaaS Services or Documentation any Malicious Code; or (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the SaaS Services or Documentation.

(d) Client Responsibilities. Client: (a) shall prevent unauthorized access to, or use of, the SaaS Services or Documentation, and notify Zippity promptly of any such unauthorized access or use; (b) shall not use the SaaS Services  or Documentation in violation of applicable laws; (c) shall not send or store using the SaaS Services infringing, obscene, threatening, or otherwise unlawful material, including material that violates privacy rights; (d) shall not send or store Malicious Code in connection with the Service; and (e) shall not attempt to gain access to the SaaS Services in a manner not set forth in the Documentation. 

  1. Proprietary Rights; Aggregated Data; Restrictions.

(a) Ownership; Reservation of Rights; Feedback. As between Zippity and Client, Zippity owns all right, title and interest in and to the SaaS Services and Documentation.  Except for the limited rights and licenses expressly granted hereunder, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title or interest in or to the SaaS Services or Documentation.  Client agrees that Zippity is free to use, without any attribution or compensation to any party, and Client hereby assigns to Zippity on Client’s behalf and on behalf of its Authorized Users, all right, title and interest in and to any ideas, suggestions, modifications, improvements or feedback provided in connection with the SaaS Services.

(b) Input Data; Aggregated Data. As between Zippity and Client, Client owns all right, title and interest in and to any data that Client submits, posts or uploads in to the SaaS SaaS Services (the “Input Data”), provided, however, that Zippity owns all right, title and interest in and to any data related to Client’s use of the SaaS Services that is used by Zippity in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Services (the “Aggregated Data”). Client hereby grants to Zippity a perpetual, non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Input Data and perform all acts with respect to the Input Data as may be necessary or helpful for Zippity to provide, maintain, support or improve the SaaS Services.

  1. Warranties and Remedies; DISCLAIMER.

(a) Client’s Acknowledgement of Pilot Program (if applicable). Client acknowledges and agrees that, to the extent any Subscription is offered as part of a pilot program intended to further improve, and demonstrate to the parties the value of, the SaaS Services (“Pilot Program”), then the warranty set forth in Section 7(b) does not apply during any such Pilot Program.

(b) Limited Warranty for SaaS Services.  Subject to Section 7(a), Zippity warrants that the SaaS Services, when accessed and used for the purpose and in the manner permitted and authorized by this Agreement, will perform substantially in accordance with the specifications set forth in the applicable Documentation; provided, that this warranty does not address availability of the SaaS Services.  The warranty in this Section 7(b) is made only to Client, and Zippity shall have no liability to any Authorized User or other third party as a result of any breach of such warranty.  As Client’s sole remedy, and Zippity’s sole liability, for any breach of the warranty set out in this Section 7(b), Zippity shall use commercially reasonable efforts to cause the SaaS Services to perform as warranted, provided Client provides Zippity with prompt written notice of any failure to so perform.  Zippity shall have no liability for money damages as a result of any failure of the SaaS Services to perform as warranted.

(c) Limited Warranty for Additional Services.  Zippity warrants that the Additional Services will be performed in a professional manners using appropriately skilled personnel.  The warranty in this Section 7(b) is made only to Client, and Zippity shall have no liability to any Authorized User or other third party as a result of any breach of such warranty.  As Client’s sole remedy, and Zippity’s sole liability, for any breach of the warranty set out in this Section 7(c), provided that Client notifies Zippity of such breach within ten (10) days from completion of the Additional Services, Zippity shall re-perform the non-conforming Additional Services.  Zippity shall have no liability for money damages as a result of any failure to perform the Additional Services as warranted.

(d) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE CLIENT’S EXCLUSIVE REMEDIES AND ZIPPITY’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.

  1. Intellectual Property Indemnity. (a) Zippity shall defend at its own expense any action brought against Client alleging that the SaaS Services directly infringe or misappropriate any United States intellectual property right of a third party and to pay all damages and costs finally awarded in any such action, provided that Client has given Zippity prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Client.
    (b) Zippity shall have no obligation hereunder and this Section 8 shall not apply to the extent any such infringement or misappropriation arises out of: (i) modification of the SaaS Services by Client or its Authorized Users; (ii) use of the SaaS Services in a manner inconsistent with the Documentation; (iii) use of the SaaS Services in combination with any other product or service not provided by Zippity to the extent such combination caused the infringement or misappropriation; or (iv) use of the SaaS Services in a manner not otherwise contemplated by this Agreement.  (c) If Zippity or Client is enjoined from using the SaaS Services, or becomes, or in the opinion of Zippity is likely to become, the subject of an infringement claim or action otherwise covered by the indemnification remedy in Section 8(a), Zippity may at its sole option and (together with its obligations pursuant to Section 8(a)) as its sole liability: (I) procure for Client, at no cost to Client, the right to continue using the Service; (II) replace or modify the SaaS Services to render it non-infringing, provided there is no material loss of functionality; or (III) terminate this Agreement and refund any prepaid subscription fee(s) paid by Client for the SaaS Services. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF ZIPPITY FOR ANY INFRINGEMENT CLAIMS.

  1. Client Indemnity. Client agrees to defend, indemnify and hold Zippity harmless from and against all losses, damages and expenses, including reasonable attorney’s fees, incurred in connection with any claims brought by any third party against Zippity or Zippity’s directors, officers,  employees and agents arising out of or relating to: (a) Client’s products or services (whether or not such products or services utilize the SaaS Services or its output); (b) Client’s or its Authorized Users’ use of the SaaS Services in violation of the terms of this Agreement; (c) claims that the Input Data infringes the rights of, or has caused harm to, a third party or violates any law; or (d) any other action of Client or its Authorized Users or other employees and agents; provided, however, that Zippity: (x) promptly gives written notice of the Claim to Client; (y) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle any Claim unless it unconditionally releases Zippity of all liability); and (z) provides to Client, at Client's cost, reasonable assistance upon request.
  1. LIMITATIONS OF LIABILITY. 

(A) IN NO EVENT SHALL ZIPPITY, ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE SAAS SERVICES, COST OF DATA RECONSTRUCTION, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAYS, AND CLAIMS OF CUSTOMERS OF THE CLIENT OR OTHER THIRD PARTIES FOR ANY DAMAGES (EXCEPT IN THE CASE OF INDEMNIFIED CLAIMS UNDER SECTION 8(A)). ZIPPITY’S LIABILITY FOR ANY CLAIM WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, OR FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, INSTALLATION, TECHNICAL DIRECTION OF INSTALLATION, INSPECTION, OPERATION OR USE OF ANY SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT, OR FROM ANY PRODUCTS OR SERVICES RENDERED IN CONNECTION THEREWITH, SHALL IN NO CASE (EXCEPT AS PROVIDED IN THE SECTION ENTITLED “INTELLECTUAL PROPERTY INDEMNITY”) EXCEED ONE-HALF (1/2) OF THE FEES ALLOCABLE TO THE PRODUCTS OR SERVICES WHICH GAVE RISE TO THE CLAIM.

(B) ALL CAUSES OF ACTION AGAINST ZIPPITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF SHALL EXPIRE UNLESS BROUGHT WITHIN ONE YEAR OF THE TIME OF ACCRUAL THEREOF.

(C) IN NO EVENT, REGARDLESS OF CAUSE, SHALL ZIPPITY BE LIABLE FOR PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION OR FOR INDEMNIFICATION OF CLIENT OR OTHERS FOR COSTS, DAMAGES, OR EXPENSES ARISING OUT OF OR RELATED TO THE SERVICES (EXCEPT AS PROVIDED IN THE SECTION ENTITLED “INTELLECTUAL PROPERTY INDEMNITY”).

(D) EXCLUSIONS; SPECIFIC ACKNOWLEDGEMENT. THE SAAS SERVICES BEING PROVIDED HEREUNDER ARE INTENDED AS A TOOL TO FACILITATE CLIENT’S DELIVERY OF SERVICES.  CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT THE SAAS SERVICES RE PROVIDED “AS IS,” THAT CLIENT IS USING THE SAAS SERVICES AT ITS OWN RISK, AND THAT, AS BETWEEN ZIPPITY AND CLIENT, CLIENT IS SOLELY RESPONSIBLE FOR ANY PRODUCTS AND SERVICES (INCLUDING CAR MAINTENANCE SERVICES) THAT CLIENT MAY PROVIDE, REGARDLESS OF WHETHER IT UTILIZES THE SAAS SERVICES OR ANY OUTPUT OF THE SAAS SERVICES TO FACILITATE ITS PROVISION OF SUCH PRODUCTS AND SERVICES.

  1. Laws and Regulations. Zippity does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Services is the sole responsibility of the Client. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, Zippity assumes no responsibility for compliance therewith. If Client desires a modification as a result of any such change or revision, it shall be treated as a change per Section 4. Nothing contained herein shall be construed as imposing responsibility or liability upon Zippity for obtaining any permits, licenses or approvals from any agency required in connection with the supply, provision, performance, or operation of the Services. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the SaaS Services. Without limiting the generality of the foregoing, Client shall not make the SaaS Services available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding Massachusetts law with respect to conflicts of law. Client agrees that all causes of action against Zippity under this Agreement shall be brought in the State Courts of the Commonwealth of Massachusetts, or the U.S. District Court located in Boston, Massachusetts. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed. 
  1. Confidentiality. Zippity (the “Disclosing Party”) may from time to time disclose to Client (the “Receiving Party”) whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products, customers, or services, including both information expressly designated as “confidential” and information that should by its nature be understood to derive value from its confidentiality (“Confidential Information”) in connection with this Agreement. Non-public information regarding the SaaS Services (including not limited to pricing, performance, operation, and data formats) and the Documentation is Confidential Information of Zippity.  Except as expressly permitted by this Agreement, the Receiving Party shall (a) protect Confidential Information of the Disclosing Party from unauthorized dissemination, using at least the same degree of care which the Receiving Party ordinarily uses with respect to its own proprietary information, but in no event with less than reasonable care, (b) not use Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and (c) limit the disclosure of Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if such disclosure is required by law or by the order of a court or similar judicial or administrative body of competent jurisdiction; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement promptly and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s request and expense, in obtaining a protective or similar order enjoining, restraining or limiting the disclosure of such Confidential Information. This Section 12 shall survive any termination of this Agreement, and the confidentiality obligations set forth herein shall apply for a period of three (3) years following such termination (but indefinitely for any trade secrets so long as they remain trade secrets). The Receiving Party shall return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in tangible form and all materials or media containing or incorporating any Confidential Information of the Disclosing Party: (a) upon the written request of the Disclosing Party; or (b) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the Receiving Party shall certify promptly and in writing that it has done so. The Receiving Party may retain a copy of any Confidential Information required for record keeping purposes and there shall be no requirement for a Receiving Party to destroy any Confidential information residing in any archival or back-up computer system. Any such retained Confidential Information shall remain subject to the obligations contained herein. If the Receiving Part discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
  1. Force Majeure. Zippity shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, pandemic, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Client, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate Zippity for such delay. 
  1. Cancellation. Orders for SaaS Services may not be canceled once placed and are not eligible for partial refunds for any unused software subscription term. Orders for Support and Maintenance or other professional services may be canceled upon prior written notice and payment of termination charges, including but not limited to, all costs identified to the order incurred prior to the effective date of notice of termination and all expenses incurred by Zippity attributable to the termination, plus a fixed sum of ten (10) percent of the final total price to compensate for disruption in scheduling and other indirect costs. Vehicles that are taken out of service are still considered active and will continue to be charged at the monthly subscription price until Client contacts Zippity.
  1. Termination. 

(a) Client may terminate this Agreement at any time before renewal of the SaaS Services. 

(b) No termination by Client for default shall be effective unless, within fifteen (15) days after receipt by Zippity of Client’s written notice specifying such default, Zippity shall have failed to initiate and pursue with due diligence correction of such specified default. 

Upon any termination of this Agreement, Client shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the SaaS Services and Zippity Confidential Information. Termination for any reason shall not relieve Client of the obligation to pay any fees accrued or due and payable to Zippity prior to the effective date of termination.

  1. Assignment. Any assignment by Client of this Agreement or of any rights or obligations under the Agreement without prior written consent of Zippity is prohibited, and any attempt by Client to do so in breach of this Section 16 shall be void and of no effect.
  1. Entire Agreement. This Agreement constitutes the entire agreement between Zippity and Client. There are no agreements, understandings, restrictions, warranties, or representations between Zippity and Client other than those set forth herein or herein provided. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
  1. Miscellaneous.  All notices and other communications under this Agreement shall be in writing and shall be effective when received or, if delivery is not accomplished by reason of or some fault of the addressee, when tendered for delivery, and may be transmitted by (i) personal delivery, (ii) express mail by registered or certified mail, (iii) by courier or delivery service, or (iv) by fax with a receipt confirmed in writing by the receiving party, by either party to the other party at their respective addresses set forth in the heading hereof or to such other addresses as either party may from time to time notify the other party of in accordance with this Section. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship or employment or franchise relationship between the parties. Neither party has the right, power or authority to bind the other or incur, assume or create any obligation on behalf of the other party. Other than as expressly set forth herein, no provision of this Agreement shall be deemed for the benefit of any other person or entity, including any third party. Except as otherwise specified in writing by Client, Zippity may use Client's name and logo in lists of customers, on marketing materials and on its website. The parties consent to the use of electronic signatures in connection with the execution of this agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures.