Last Updated: February 11, 2013.
PLEASE READ THIS AGREEMENT CAREFULLY. CAPITALIZED WORDS OR EXPRESSIONS SHALL HAVE THE MEANING ASCRIBED TO THEM IN THIS AGREEMENT. THIS IS AN AGREEMENT BETWEEN YOU AND IPERCEPTIONS® EFFECTIVE AS OF THE EFFECTIVE DATE. THIS AGREEMENT GOVERNS THE USE OF THE WEBSITE, THE SERVICES AND OTHER PRODUCTS AND SERVICES.BY USING, VISITING OR OTHERWISE ACCESSING THE WEBSITE OR THE SERVICES IN ANY WAY (INCLUDING BY RESPONDING TO SURVEYS OR OTHER COMMUNICATIONS RECEIVED FROM OTHER USERS OF THE WEBSITE AND/OR THE SERVICES, BY VIEWING, DOWNLOADING OR UPLOADING ANY CONTENT OR MATERIAL MADE AVAILABLE VIA THE WEBSITE OR THE SERVICES OR BY BROWSING), YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT (I) YOU ARE 18 YEARS OF AGE OR OLDER, (II) YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. IF YOU DO NOT AGREE, YOU SHALL NOT USE, VISIT, SUBSCRIBE OR OTHERWISE ACCESS THE WEBSITE, SERVICES AND/OR INFORMATION CONTAINED ON THE WEBSITE. IF YOU ARE A USER LOCATED IN A COUNTRY EMBARGOED BY CANADA AND/OR UNITED STATES, OR ARE ON THE U.S TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS, YOU ARE NOT PERMITTED TO USE, VISIT, SUBSCRIBE OR ACCESS THE WEBSITE, SERVICES AND/OR INFORMATION CONTAINED ON THE WEBSITE
YOUR USE, VISIT, SUBSCRIPTION OR ACCESS TO THE WEBSITE AND/OR SERVICES MAY INVOLVE THIRD PARTY SERVICES GOVERNED BY SEPARATE AND/OR SUPPLEMENTARY TERMS APPLICABLE MORE SPECIFICALLY TO THEM. YOU MUST READ AND AGREE TO BE BOUND BY THESE SEPARATE OR SUPPLEMENTAL TERMS GOVERNING THE USE OF SUCH THIRD-PARTY SERVICES AS A CONDITION OF USING THE PARTICULAR WEBSITE AND/OR SERVICES.
The parties hereto agree as follows:
Whenever used in this Agreement, the following terms have the meaning ascribed to them below and all other terms not defined in this Section 1 shall have the meaning ascribed to them in this Agreement:
1.2. “Content” means all audio, data, images or graphic files, video, written text, messages, survey questions and responses, sound, music, multimedia, documents, advertisements, photographs and any other information or materials that are uploaded or otherwise provided by You or on Your behalf, or by any Users through You or directly, in connection with Your or the Users’ use of the Website or the Services. Content does not include iPerceptions Proprietary Material, the Software, Third Party Items, content licensed or otherwise supplied to You by iPerceptions or by third party service providers, or data generated by iPerceptions or third party service providers in the course of providing services or data collected by iPerceptions pursuant to other agreements that You or other Users may have with iPerceptions.
1.3. “Customer” means iPerceptions’ customer to who iPerceptions licenses the Services.
1.4. “Documentation” means the user documentation related to the use of the Website or the Services, as applicable, generally made available by iPerceptions to its Customers.
1.5. “Effective Date” means the User's first date of use, visit or access (including by responding to surveys, viewing, downloading or uploading any content or material) to the Website.
1.6. “iPerceptions” means iPerceptions, Inc., located at 3575 Boulevard St-Laurent Suite 310 Montreal, Québec H2X 2T7 Canada or any other successor location.
1.7. “iPerceptions and Others” means iPerceptions and its affiliates, its subsidiaries and their respective directors, officers, employees, agents, resellers, partners, service providers, suppliers, successors and assigns.
1.8. “iPerceptions Trademarks” means graphics, logo, service marks, name or any other trade name, icon or mark identifying iPerceptions’ products and/or services (including the Services) and domain names that iPerceptions owns or licenses.
1.10. “Products and Services” shall have the meaning ascribed to it in Section in Section 11.
1.11. “Proprietary Material” means Website (including, without limitation, all information and screens appearing on the Website, including documents, database, website design, text, graphics, images and icons, as well as the arrangement thereof, its features, functions), Services, content, material and tools, disclosed or supplied by iPerceptions or by its representatives, iPerceptions Trademarks, Third Party Items, transactional and performance data related to use of the Services and all copies thereof, including all related modifications, enhancements or derivative works, and any and all related Intellectual Property Rights therein.
1.12. “Respondents” means survey respondents or other participants who interact with the Services as a result of such respondents’ or participants’ relationship with a Customer.
1.13. “Services” means any products and services provided to Customers by iPerceptions or by any of its agent, reseller or partner.
“Service Level Agreement” or “SLA” means the service level commitments iPerceptions makes to You during the Subscription Term, which may be changed at any time by iPerceptions.
1.14. “Service Plans” means the plans for Services, each designated as the “Free”, “Plus”, “Premium” or “Professional” plan as described on the Website or any successor name. Each Service Plan may be changed from time to time by iPerceptions.
1.15. “Software” means iPerceptions hosted tools and object code version of software products provided to You as part of the Services under this Agreement on a standalone basis or as a component of the Services. This expression includes the Documentation and all upgrades, updates, improvements, modifications, refinements, or enhancements, extensions and revisions thereto. This expression “Software” shall not include any Third Party Software, unless expressly provided otherwise in this Agreement. iPerceptions will host and retain physical control over the Software and make it available only through the Services. Notwithstanding anything to the contrary in this Agreement, no provision under this Agreement shall obligate iPerceptions to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code form.
1.16. “Subscription Fees” shall means the subscription fees You are required to pay under any of the Service Plans.
1.17. “Subscription Service Agreement” or “SSA” means the Subscription Service Agreement between iPerceptions and a Customer to access any of the Service Plans.
1.19. “Third Party Services” means online or offline applications, software products for third party services and/or websites which interoperate with the Services and are provided or operated by third-party entities or individuals, including any updates or upgrades thereto, if so provided by the terms of such third party services.
1.20. “Third Party Software” means standalone, online or offline software product made available by a third party vendor in connection with the Services, including any updates or upgrades thereto.
1.21. “Third Party Trademarks” means the graphics, logos, service marks, and trade names, product names and brand names and domain names owned by a third party.
1.22. “Users” means You, the Respondents, and other users of the Website and/or Services, if any, as the case may be.
1.23. “You” or “Your” means, (i) you, individually, if you are agreeing to enter this Agreement in Your own capacity, or (ii) if you enter this Agreement on behalf of a company or other legal entity, means the company or other legal entity for whose benefit you act and you, individual, warrants and represents to have the authority to bind such entity to this Agreement, (iii) You have full legal authority to bind Your employer, Users and/or legal entity, as the case may be, if You are accepting on behalf of Your employer, Users and/or legal entity, as the case may be
1.24. “Your Trademarks” means the graphics, logos, service marks, and trade names, product names and brand names and domain names You own.
1.25. “Website” means iPerceptions.com and any other website made available to You and Your Users and operated by iPerceptions or by its authorized third party hosting entity acting on behalf of iPerceptions, and any and all sub-domains thereof.
2.1. Notwithstanding anything to the contrary in this Agreement, In order to use the Services under any of the Service Plans, You must register, open an Account, pay the required Subscription Fees and accept the terms of the SSA.
1) You acknowledge and agree that iPerceptions and/or its suppliers solely and exclusively own and retain all right, title and interest in and to the Proprietary Material. Subject to the limited rights expressly licensed under Section 4, iPerceptions reserve all rights, title and interest in and to the Proprietary Material. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to or vest in You, your affiliates, Users or any other individual or entity, any title, rights or interest in or to any intellectual property, including in or to the Proprietary Material (including, without limitation, any Software or Documentation), other than the licences expressly granted herein.
2) iPerceptions is a trademark of iPerceptions Inc. in Canada and the United States. Other trademarks, names, and logos on the Website may be the property of their respective owners. Your use of any of the Website grant You no right or license to reproduce or otherwise use any iPerceptions or third-party trademarks.
3) Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
4. IPERCEPTIONS LICENSE & RESTRICTIONS
Subject to Your compliance with the terms of this Agreement, iPerceptions grants to You a personal, limited, non-exclusive, non-transferable, without the right to sub-license, revocable license to use, visit or otherwise access the Website, upload or otherwise make available Your Content and store the same on iPerceptions’ servers
1) use the Website, Services, if any, for any reason or manner other than as permitted under this Agreement;
2) lease, license, sublicense, rent, or sell the Proprietary Material, or any part thereof, or the right to use and access the Website or Services, or any part thereof, to others;
3) bundle or incorporate the Website, Services or any part thereof, with or into any other product or service;
4) obfuscate, remove or alter any of iPerceptions Trademarks, Third Party Trademarks, internet links, patent, copyright, confidentiality or proprietary notices or legends or other notices or markings that are on or in the Website, Services, Documentation;
5) disclose, harvest or otherwise collect information without that party’s express consent or engage in any copyright infringement or other intellectual property infringement of any party or disclose any information in violation or breach of a contract, or that violates an individual's publicity or privacy rights;
6) copy or imitate part or all of the design, reverse engineer, layout, or look-and-feel of the Website or the Services, or any part thereof;
7) interfere with or disrupt the Website or the Services or servers, as determined by iPerceptions in its sole discretion;
8) use the Website or the Services to collect, process, or otherwise handle in breach of any privacy laws or any other applicable laws; and
9) upload, post, email, distribute, communicate, transmit or otherwise make available any Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that User does not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any similar form of solicitation;
5. YOUR LICENSE & RESTRICTIONS
By posting, uploading or submitting Your Content, You hereby grant to iPerceptions, and its affiliates, and their partners a worldwide, non-exclusive, royalty-free, sublicensable
1) license to use, collect, disclose, process, transfer, store the Content and all intellectual property rights with respect thereto for the performance of Services in addition to other purpose for which such Content was submitted or made available to iPerceptions, without any compensation or obligation to You;
2) transferable, perpetual, irrevocable license to retain, use, sell, offer to sell, distribute, reproduce, modify, adapt, publish, publicly perform or display, and translate information that is not personally identifiable information gathered during the performance of Services for the purpose of assembling aggregated attitudinal and usage statistics.
Notwithstanding anything to the contrary in this Agreement, iPerceptions reserves the right to make changes to the terms of this Agreement as deemed necessary by iPerceptions.
7. OPTING OUT OF COMMUNICATIONS
Except as expressly provided otherwise in this Agreement, You and other Users have the right to opt out from receiving future communications in accordance with this Section, including for no longer receiving email invitations to take surveys which are sent by iPerceptions on behalf of Customers, You can contact us (see Contact Us Section 19.2), or follow the unsubscribe instructions included in each promotional email, if any, sent to You by selecting the opt-out link in the email.
8. THIRD PARTY ITEMS
8.1. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment, Internet connectivity, needed to access the Website and Services.
8.2. iPerceptions may make Third Party Items available to You and to other Users. iPerceptions does not endorse and has no responsibility, liability or obligations whatsoever relating to said Third Party Items and does not warrant or support any such Third-Party Items whether or not designated as “certified” or otherwise by iPerceptions.
8.3. You accept the exclusive and sole responsibility for the access or use of the Third Party Items, and such access and use are at Your and the other Users’ own risks and under the disclaimer of warranties and liability limitations set forth in Sections 11 and 12 respectively of this Agreement.
8.4. Dealings between You and any third-party in connection with Third-Party Services are between You and such third party and/or its suppliers. Without limiting the foregoing,
1) Third Party Items providers may require to pay a fee in order to use said Third Party Items; and
2) Access and Use of the Third Party Items may be subject to Your acceptance of additional terms and conditions which will governing said Third Party Items.
8.5. You hereby agree on Your behalf and on behalf of the other Users, that iPerceptions may allow the Third Party Items providers to access Your Content as required for the interoperation of such Third Party Items with the Services.
Support Services are available under Your Subscribed Service Plan, if any. Such support may be more amply described in the SLA.
10. YOUR REPRESENTATIONS
You hereby represents and warrants that,
1) You have validly entered into this Agreement and have the legal power to do so. You have full legal authority to bind Your employer, Users and/or legal entity, as the case may be, if You are accepting on behalf of Your employer, Users and/or legal entity, as the case may be.
2) If You are a corporation or other legal entity, this entity is validly formed and existing under the laws of its jurisdiction and it has duly authorized You to enter into this Agreement;
3) You, or any other Users, if an individual, are/is of the age of majority in his/her place of residence;
4) You warrant that You and the other Users have the right to submit Content, and the use and publication of said Content and Feedback, if any, do not violate, infringe or misappropriate the intellectual property rights of a party or any third party. Furthermore, You own or control all of the necessary rights for the licenses granted in this Agreement;
5) You warrant that You and the other Users are not citizens of an embargoed country or a prohibited end user under applicable Canadian, U.S., or other applicable country’s export and anti-terrorism laws, regulations and lists;
7) You and the other Users’ do not use the Website and Services for any unlawful purpose or purpose prohibited by this Agreement.
11. DISCLAIMER OF WARRANTIES
To the full extent permitted by law, the Websites (including, its features, functions, content), the products, Services or any part thereof, , Third Party Items, all user survey or poll questions, responses or submission results thereto and all data or content obtained from or through the Website or Services (collectively “Products and Services”) are provided to, and accepted by You and other users (including Users) on an "AS IS", "with all faults", "as available" basis and without any endorsement, representation or warranty of any kind, and, without limiting the foregoing, iPerceptions, its affiliates, subsidiaries, service providers, directors, employees, agents, partners, resellers, suppliers expressly disclaim, with regard to the Products and Services, or any part thereof, all warranties and representations of any kind, either express or implied, or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, accuracy, workmanlike effort, lack of negligence, quiet enjoyment, interoperability with or performance of any Third Party Items, non-infringement, and title. iPerceptions does not warrant nor represent that the exercise of the rights granted under this Agreement or that the use of the Website, Services, Third Party Items, and other products or services, whether embedded in your product or otherwise, will not infringe, directly, indirectly or by inducement, any patent, trademark, copyright or other right of third parties. Without limiting the foregoing, to the full extent permitted by law, You understand and agree that Your use or the use by any user (including Users) of the Products and Services are at Your own risk and the risk of the other users (including Users).
12. LIMITATION OF LIABILITY
You expressly understand and agree that iPerceptions and Others shall not be liable for any indirect, special, consequential, punitive, multiple, exemplary, incidental or aggravated damages (including, without limitation, damages for the inability to use any service or software or access data, information or content, loss or corruption of information or data, loss of business, opportunity, profits or revenues, downtime, loss of the use of any of the Products and Services, failure to realize any expected savings, transmit or receive any data, business interruption, cost of procurement of substitute goods or service or the like), whether or not foreseeable, arising out of or related to this Agreement , the use of, or inability to use, performance or non-performance, of the Products and Services, or any part thereof, whether a claim for such damages is based on warranty, contract or tort (including negligence or strict liability) product liability or otherwise, even if an authorized representative of iPerceptions is advised of the likelihood or possibility of such damages. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, in no event shall iPerceptions and Others be responsible or liable for (i) the actions or omissions of any third party supplier or vendor and shall have no liability for the use of Third Party Items; (ii) any use or misuse of any account by You or any other Users, including any and all activities associated with logins and passwords, or for any unauthorized access to or alteration of any transmissions or data, any material or data sent or received or not sent or not received, or any transactions entered into through the Website or the Services or in reliance upon any information obtained through the use of the Website or the Services; (iii) the use or performance of, the delay in providing, the failure to provide, or the inability to use or access to, the Website, the Services or materials,(iv) the deletion or accuracy, failure to store, transmit or receive transmission of any content, including Content; (v) any information, software, products or services contained in or available through the Website, the Services or Professional Services, including information, software, products and services made available by other users of the said website and services; (vi) the security, privacy, storage, or transmission of other communications originating with or involving use of Website, the Services or any part thereof; or (vii) any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement or violation of a third party’s rights, including intellectual property rights.
Notwithstanding any damages that You and other Users might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of iPerceptions and Others under this Agreement and Your and the other Users' sole and exclusive remedy for all of the foregoing and the above shall be limited to terminate this Agreement and discontinue using the Website and Services and $100.00.
The above limitations of liability shall apply to the maximum extent permitted by law.
14. TERM AND TERMINATION
This Agreement shall automatically, without notice, become effective upon the Effective Date and shall continue indefinitely until the first to occur following events: (i) You stop using the Website or the Services, (iii) a subscription or free trial, if any, expired or has terminated, (iv) if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (v) if this Agreement is terminated for convenience and in its sole discretion by iPerceptions; (vi) following a request, an order for law enforcement, or iPerceptions is required to do so by law. iPerceptions shall have no liability for any loss and damage, compensation or claim, whether or not foreseeable, resulting from the termination of this Agreement.
15. EFFECTS OF TERMINATION
8) Upon termination of this Agreement, for any reason, You shall immediately cease all use of licenses granted under this Agreement, the Website, the Services, if any, the Third Party Items, if any, and,You and all other Users will lose all access to the Website, including, without limitation, to Your, data and files. Upon such termination, iPerceptions retains the right, in its sole discretion
a) to provide You and other Users access to, and the ability to export, Your data for a commercially reasonable period of time at iPerceptions' then-current rates for the applicable service,
b) unless legally prohibited, to permanently delete any files, programs, data and email messages, without notice to You. You hereby agrees to such deletion and agree that iPerceptions shall have no liability whatsoever for deletion of Your data pursuant to these terms;
c) iPerceptions shall not be obliged to retain any of Your and other Users' Content (including survey or poll results or responses) or to provide the same to Users and delete the Users’ Content from its database, but may elect to do so in its sole discretion. Without limiting the foregoing, iPerceptions may keep Your and other Users’ data as required by law or pursuant to any order from a court.
9) Upon request You will return or destroy all information iPerceptions and destroy any associated media. iPerceptions may ask You to provide written certification of the deletion and destruction.
10) Termination of this Agreement will not relieve You of Your obligations and will not affect any claim arising prior to such termination.
The following Sections shall survive the expiration or earlier termination of this Agreement: 1 (note: The definitions associated with surviving clauses); 3 (Ownership); 4.2 (Restrictions), 6 (Change), 8.3, 10 (Your representations), 11 (Disclaimers of Warranties), 12 (Limitations of Liability), 13 (Indemnification), 15 (Effects of Termination), 16 (Survival), 17 (Export Controls), 18 (Links to Other Websites), 19 (General Provisions).
17. EXPORT CONTROLS
Your use of the Services, or any related technical information or materials, including posting, or uploading Your Content, software or other content via the Services, may be subject to the export, re-export, import and/or use controls laws and regulations of Canada, the United States and other countries, and You agree to comply with all such applicable laws and regulations.
18. LINKS TO OTHER WEBSITE
iPerceptions may provide references, frames or hyperlinks to internet websites maintained by third parties. iPerceptions does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. iPerceptions is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
19. GENERAL PROVISIONS
1) Notice to iPerceptions
Any notice provided to iPerceptions pursuant to this Agreement should be sent to iPerceptions, Inc. 3575 Boulevard St-Laurent Suite 310 Montreal, Quebec H2X 2T7, Canada, Attention: Legal Counsel.
1) Notice to You
iPerceptions may, at its sole option, provide You with notices, including those regarding changes to this Agreement, by email, regular mail, text message, postings on or within any of the Website or on or within the Services, if any.
19.2. Contact Us
If You have questions related to this Agreement, please email us at: info@iPerceptions.com, write or send Your fax at:
3575 Boulevard St-Laurent
Attention: Information Officer.
19.3. Recourses – Attorneys' Fees
1) Except as provided otherwise in this Agreement, all rights, remedies and recourses set forth in this Agreement for the benefit of iPerceptions (including, without limitation, in the event of termination) shall be in addition and without prejudice to all other rights, remedies and recourses available to iPerceptions.
2) Should iPerceptions resort to legal proceedings in connection with this Agreement, in the event iPerceptions prevails in such legal proceedings, iPerceptions shall be entitled, in addition to such other relief as may be granted, to recover its reasonable attorneys' fees and costs in such legal proceedings from You.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, but You and other Users may not assign or otherwise transfer their respective rights or obligations under this Agreement without receiving the express prior written consent of iPerceptions, which may be withheld in iPerceptions’s sole discretion. iPerceptions may assign this Agreement at any time without notice. Any assignment in violation of this Section shall be null and void.
19.5. Force Majeure
Except with regards to obligations to pay sums due hereunder, neither party shall be held responsible for any delays or failure in performance caused in whole or in part by fires, strikes, floods, embargoes, labor disputes, delays or failures of subcontractors, acts of sabotage, riots, accidents, delays of carriers, voluntary or mandatory compliance with any governmental act, regulation or request, acts of God or by public enemy, or any other causes beyond the party’s reasonable control.
19.6. Applicable Laws
1) This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to its conflict of law provisions, and the parties irrevocably attorn to the jurisdiction of the courts of competent jurisdiction of Montreal in respect of all matters and disputes arising hereunder. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, Section 2125 of the Civil Code of Quebec. To the extent it may be applicable, You expressly exclude any applicability of the Uniform Computer Information Transactions Act.
2) Notwithstanding anything to the contrary in any statute or law to the contrary, You agree on Your behalf and on behalf of the other Users that any claim or cause of action arising out of or related to use of the Services by You or by any of the other Users must be filed within one (1) year after such claim or cause of action arose or be forever barred. You represent and warrant that You have obtained the express content for this time limitation from all other Users.
Without limiting any of Your other obligations under this Agreement or applicable law, You and other Users shall comply with all applicable laws, including, without limitation, laws related to unsolicited commercial email defamation, intellectual property, regulations promulgated by securities and exchange commission and similar regulatory authorities throughout the world, and the rules of any securities exchange, and all privacy policies or similar policies or procedures to which You and other Users may be bound that are related to Your and Your Users’ use of the Website, Services, Third Party Items and Professional Services, if any.
If any provision or part of any provision of this Agreement shall be held by a Court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions or part of any provision shall remain in full force and effect and the illegal, invalid or unenforceable provisions or part of any provision shall be replaced by legal provisions or part of a provision carrying to the extent legally permissible, the intent of the parties as to such illegal, invalid or unenforceable provision or part of a provision.
19.9. No Waiver
The failure of a party to exercise any right, power or option given hereunder or to insist upon the strict compliance with the terms and conditions hereof by the other party shall not constitute a waiver of the terms and conditions of this Agreement with respect to that or any other or subsequent breach thereof nor a waiver by this party of its rights at any time thereafter to require strict compliance with all terms and conditions hereof including the terms or conditions with respect to which this party has failed to exercise such right, power or option. All waivers must be in writing and signed by a party waiving its rights.
19.10. Third Party Rights
No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
19.11. Complete Agreement
This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes and replaces all prior agreements, understandings, negotiations, and discussions, whether oral or written, between the parties in connection therewith.
3) This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
4) The headings used in this Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any terms of this Agreement.
5) In this Agreement, words importing the singular include the plural and vice versa and words importing gender include all genders.
6) The use of the terms “includes” and “including”, and similar terms, shall be deemed not to limit what else might be included.