End-User Service Agreement (Supplier)
Last modified – 01/05/2020
Welcome to the supplier portal for the proprietary Veritas risk assessment platform offered and maintained by Global Risk Management Solutions, LLC (“GRMS”). GRMS offers a subscription-based service (the “Service”) to suppliers, including access to the risk assessment platform through the supplier portal, which subscribing suppliers and their authorized personnel may use tobecome compliant with their client’s risk assessment requirements and manage their compliance.
IMPORTANT – PLEASE READ CAREFULLY: The terms of this End User Service Agreement, along with all the policies incorporated herein by reference (collectively, this “Agreement”) sets out legally binding terms and conditions under which you are subscribing to the Service.
BY CLICKING ON THE “I AGREE” BUTTON, CHECKING A BOX TO ACCEPT THE TERMS OF THIS AGREEMENT, OR USING THE SERVICE, YOU ARE REPRESENTING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE USING THE SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THIS AGREEMENT IS EFFECTIVE IMMEDIATELY UPON YOUR FIRST USE OF THE SERVICE. GRMS RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CHANGE (MODIFY, ADD, OR DELETE) THE AGREEMENT OR PORTIONS OF IT. IF GRMS MAKES A MATERIAL CHANGE, UNLESS THE CHANGE CONCERNS A NEW SERVICE OR FEATURE OR IS URGENTLY NEEDED TO ADDRESS ONGOING ABUSE OR RESPOND TO LEGAL REQUIREMENTS, GRMS WILL PROVIDE YOU WITH 30 DAYS’ ADVANCE NOTICE VIA THE EMAIL ADDRESS YOU HAVE ASSOCIATED WITH YOUR ACCOUNT. WE WILL ALSO POST THE CHANGES TO THIS AGREEMENT ON OUR WEBSITE.. YOUR CONTINUED USE OF THE SERVICE AFTER THE EFFECTIVE DATE OF ANY SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THESE OR ANY FUTURE VERSIONS OF THIS AGREEMENT, DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE SERVICE. IT IS YOUR RESPONSIBILITY TO REGULARLY CHECK THE GRMS WEBSITE TO DETERMINE IF THERE HAVE BEEN CHANGES TO THIS AGREEMENT AND TO REVIEW SUCH CHANGES.
Subject to the terms and conditions of this Agreement, GRMS will provide you with the right to access and use the Service during the term of your subscription period, solely for your own business purposes. Your rights are non-exclusive, non-transferable and non-sublicensable. You may access and use the Service only as permitted by this Agreement. You acknowledge that you are not receiving any ownership interest with respect to, the Service or any underlying technology, software and analytical tools used by GRMS to provide the Service (the “GRMS Technology”) or intellectual property rights related to the Service. You agree to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Service by you and your authorized users, or otherwise through your facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party.
The Service is offered on a subscription basis, as part of which GRMS may offer various features, functionalities and modules to the subscribers. You will be permitted to use only those features of the Service that you subscribe for.
You are responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access the Service. GRMS makes no representations, warranties, or assurances that your equipment will be compatible with the Service.
You are required to register and create a unique, password-protected account (the “Account”) in order to access and use the Service. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. You authorize us to use any information you provide us (including your SSN, TIN or EIN, if applicable) to verify your antecedents and obtain your credit reports before opening your account. We reserve the right to reject your application or delete your account without warning if you are found to have misrepresented your registration information or you fail to meet our eligibility criteria. You will issue a unique user identification and password (the “User ID”) to enable each authorized user to access and use the Service. You are solely responsible for tracking the User IDs to specific users and for ensuring the security and confidentiality of all User IDs. You acknowledge that you are fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by you. You will immediately notify GRMS of any unauthorized use of a User ID or any other breach of security known to it.
As a condition of your use of the Service, you agree not to: (a) access, tamper with, or use any non-public areas of GRMS’ systems or said system’s providers; (b) attempt to probe, scan, or test the vulnerability of GRMS’ systems or any related system or network or breach any privacy, security or authentication measures; (c) reverse engineer or attempt to discover the underlying source code or algorithms of the GRMS Technology; (d) provide access to or utilize the Service under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than your authorized users, to, directly or indirectly, utilize or otherwise benefit from the Service, whether or not for monetary or other consideration; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing GRMS’ systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity. GRMS will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. GRMS may involve and cooperate with law enforcement authorities in prosecuting users who violate these terms. You acknowledge that GRMS has no obligation to monitor your authorized users’ access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
You understand that all information, data, text, software, graphics, messages, tags, or other materials (“Content”) on the GRMS portal, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated.
“Your Content” includes all Content that you may upload or submit to GRMS in connection with your use of the Service. You, and not GRMS, are entirely responsible for all Your Content that you upload, post, email, transmit or otherwise make available through the Service. You shall be solely responsible for Your Content and the consequences of submitting such Content. You hereby represent and warrant that Your Content, (i) and our use thereof pursuant to this Agreement does not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right, (ii) does not contain any material that is sexual, pornographic, erotic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts, (iii) is not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene, (iv) does not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party’s use of the Service, (v) does not promote illegal or harmful activities or substances or provide instructional information about activities such as making or buying illegal weapons or substances, (vi) is not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, your content are created, displayed or accessed, (vii) does not contain any adware, malware, spyware, computer programming routines, software or viruses that are intended to damage, interfere with or in any way limit the functionality of any computer software or hardware or telecommunications equipment, intercept or expropriate any system data or personal information, permit unauthorized access to the Service or any part thereof or disable, damage or erase any portion of the content or advertisements processed or stored therein; or (viii) does not constitute unsolicited bulk email, junk mail, spam or chain letters.
You hereby grant to the GRMS a non-exclusive, transferable, fully-paid, worldwide, perpetual, irrevocable license and right (i) to use, modify, copy, reproduce, transmit, sub-license, index, model, aggregate, publish, display and distribute Your Content to provide the Service to you and all of GRMS’ clients, and (ii) to irrevocably anonymize and aggregate Your Content in order to perform research and development activities and statistical analysis, develop analytic models and to develop and provide other products and services. You acknowledge and agree that Your Content: (i) will be shared with other authorized client users appearing on your “Client List” which are linked to your Account; (ii) you control which Clients are linked to your Account and can review any time by logging in to your Account; (iii) at any time you can add or remove any client from the Client List by either contacting GRMS or through your Account.
YOU EXPRESSLY AGREE NOT TO UPLOAD OR SUBMIT ANY SENSITIVE DATA TO GRMS IN CONNECTION WITH YOUR USE OF THE SERVICE, EXCEPT TO THE EXTENT GRMS REQUIRES THAT YOU PROVIDE YOUR SENSITIVE IDENTIFIER INFORMATION IN ORDER TO OPEN OR ACCESS YOUR ACCOUNT. YOU ARE SOLELY LIABLE FOR INSURING THAT ALL INFORMATION AND DOCUMENTS YOU UPLOAD OR SUBMIT IN CONNECTION WITH YOUR USE OF THE SERVICE CONTAINS NO SENSITIVE DATA. SENSITIVE DATA INCLUDES, BUT IS NOT LIMITED TO, THE FOLLOWING INFORMATION CONCERNING ANY INDIVIDUAL WHATSOEVER: SOCIAL SECURITY NUMBER, DRIVER’S LICENSE NUMBER OR OTHER GOVERNMENT ID NUMBER; LOGIN CREDENTIALS FOR OTHER ONLINE ACCOUNTS; MEDICAL INFORMATION; HEALTH INSURANCE INFORMATION; UNIQUE BIOMETRIC DATA; INFORMATION ABOUT PHYSICAL OR MENTAL HEALTH OR CONDITION, RACIAL OR ETHNIC ORIGIN, SEX LIFE, TRADE UNION MEMBERSHIP, POLITICAL OPINIONS OR CRIMINAL RECORDS (INCLUDING COMMISSION OR ALLEGED COMMISSION OF ANY OFFENSE).
You acknowledge and agree that any audit performed by GRMS is for the purpose of gathering the required documentation for review by potential clients. GRMS is not responsible for record retention with respect to your records or any information you provide to GRMS in connection with your use of the Service.
GRMS has no control over Your Content, which may include Personal Information collected by or on behalf of your company (“Your Company’s Personal Information”). Examples of Your Company’s Personal Information may include data relating to your employees and personnel, or other third parties. You are responsible for managing Your Company’s Personal Information and for taking all measures necessary to comply with applicable privacy laws to ensure we may lawfully process, use, and disclose Your Company’s Personal Information to provide our Services. To the extent applicable privacy laws require an individual’s consent to be obtained prior to or during the course of our processing any of Your Company’s Personal Information, you are responsible for obtaining that individual’s consent to both (i) us processing his or her data for purposes of providing our Services, and (ii) if the individual resides outside of the United States, us transferring his or her data to the United States for our processing.
You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any order information or other data or Personal Information acquired by you or your affiliates from us as a result of your use of the Service or the transactions contemplated hereby, except as necessary for you to perform your obligations, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information.
GRMS or its licensors shall own all right, title and interest, including all related intellectual property rights, in and to the Service and GRMS Technology, any Content provided by GRMS (but excluding Your Content), any models, methods, algorithms, discoveries, inventions, modifications, customizations, enhancements, extensions, derivatives, materials, ideas and other work product that is conceived, originated or prepared in connection with the Service or related to this Agreement
GRMS and its associated logos are either registered trademarks or trademarks of GRMS. All other company names, logos and other identifying marks that may be listed as part of our Service may be trademarks of their respective owners. WE DO NOT CLAIM ANY OWNERSHIP IN ANY THIRD PARTY’S TRADEMARKS NOR DO WE CLAIM ANY SPONSORSHIP, ASSOCIATION WITH OR ENDORSEMENT BY SUCH THIRD PARTIES.
“Confidential Information” means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Service or either party’s financial condition, operations or business, and (b) the GRMS Technology.
You agree to disclose to GRMS only that portion of your Confidential Information that is reasonably necessary to enable GRMS to provide the Service, and GRMS agrees to disclose to you only that much of its Confidential Information as is reasonably necessary to enable you to receive the Service. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Service under this Agreement, respectively, the use in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations hereunder with respect to Disclosing Party’s Confidential Information.
You agree to defend, indemnify and hold harmless GRMS and its officers, directors, members, managers, employees, agents, successors and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or resulting from any claim, suit, action or proceeding arising out of or resulting from your use of the Services, including, but not limited to, any third party claim, suit, action or proceeding arising out of such third party accessing Your Content in connection with your use of the Service.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GRMS BE LIABLE TO YOU FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRMS’ AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT GRMS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE NON-INFRINGEMENT, ACCURACY, CORRECTNESS, COMPLETENESS OR CORRESPONDENCE WITH DESCRIPTION AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL SERVICES PROVIDED BY GRMS HEREUNDER ARE PERFORMED AND PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
BASIS OF BARGAIN
THE PARTIES ACKNOWLEDGE THAT (A) GRMS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
No agency, partnership, fiduciary relationship or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever. Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees. The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party. Nothing in this Agreement prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.
GRMS will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by you or third parties or an act of God, war, natural disaster, epidemic, civil disturbance, court order, labor dispute or other cause beyond GRMS’ reasonable control, including without limitation failures or fluctuations in electrical equipment. In addition, the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. GRMS is not responsible for any delays, failures, or other damage resulting from such problems. Customer acknowledges that the Service may be affected by numerous factors outside of GRMS’ control.
This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles.
DISPUTE RESOLUTION, BINDING ARBITRATION AND CLASS ACTION WAIVER
General. GRMS and you agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Services (a “Claim”) in accordance with one of the paragraphs below or as we and you otherwise agree in writing. Before resorting to these alternatives, GRMS strongly encourages you to first contact GRMS directly to seek a resolution by going to customer support. Other than those matters listed below, you and we agree to seek resolution of the Claim only through arbitration of that Claim in accordance with the terms of this Section, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
GRMS AND YOU AGREE THAT ANY CLAIM FILED BY YOU OR BY GRMS IN SMALL CLAIMS COURT OR BY GRMS RELATED TO PROTECTION OF OUR OR ANY OF OUR LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION AND YOU CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS IN ORANGE COUNTY FOR ANY CLAIM THAT WE MAY FILE IN THOSE COURTS RELATED TO OUR OR OUR LICENSOR’S INTELLECTUAL PROPERTY.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY GRMS IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ENTER INTO THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO GRMS AT THE FOLLOWING ADDRESS AND MUST INCLUDE: (1) YOUR BUSINESS NAME, (2) YOUR ADDRESS, (3) YOUR USER OR ACCOUNT NAME AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.
Address for Notice: Global Risk Management Solutions, LLC, Attn: Legal Department, 5271 California Ave., Suite 290, Irvine, CA 92617.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND WE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION
Arbitration Procedures. Because the service provided to you by us concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. The party initiating the arbitration proceeding shall initiate it with JAMS (www.jamsadr.com), and JAMS shall administer the proceedings. The JAMS rules for commercial arbitration shall govern, but to the extent those rules conflict with the terms of this Section, the terms of this Section shall govern.
Location of Arbitration. The place of arbitration will be Orange County, California.
Severability. If any clause within this Section (other than the Class Action Waiver section) is found to be illegal or unenforceable, that section will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver section is found to be illegal or unenforceable, this entire Section will be unenforceable, and the dispute will be decided by a court and you and we each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail. Each party acknowledges that it has had the opportunity to participate in the drafting of this Agreement, and has participated to the extent such party deems necessary, and any applicable rule of construction requiring that ambiguities are to be resolved against the drafting party shall not be applied in connection with the construction or interpretation of this Agreement. Each party hereby acknowledges that it has read this Agreement, has had an opportunity to consult with its own legal advisers if it so desired, and following such consultation or the opportunity for such consultation agrees to all terms and conditions contained herein. This Agreement, including the Subscription Form, constitute the entire, final and exclusive agreement between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous agreements, understandings, discussions, negotiations and communications, whether written or oral, express or implied. No amendment to or modification of this Agreement shall be binding unless in writing and accepted by a duly authorized representative of both parties.