Posted/Revised: 2/15/2019 

TERMS OF SERVICE 

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS. 

These Terms of Service constitute an agreement (this “Agreement”) by and between, Diet Typing Systems, LLC, whose principal place of business is the United States of America. (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer” or “Affiliate”). This Agreement is effective as of the date Customer clicks “I have read and agree to the website Terms of Service” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.9) are governed by this Agreement, as are Customer’s authorizations to grant its own customers and Users use of the System. 

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING/CLICKING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. 

1.   DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement. 

1. “AUP” means Vendor’s acceptable use policy currently posted at https://diettypingsystems.com/acceptable-use-policy/. 

1. “Terms and Conditions” means such terms of service as Vendor requires for Users of the System who are not Vendor’s customers or their employees. 

1. “Customer’s Clients” means any of Customer’s clients or Users or other third parties Customer gives access to the System, including without limitation such companies’ agents and employees. 

1. “User” means any company or individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Customer’s Clients. 

1. “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Clients, by other Users, and by Customer’s Clients’ own customers.  

1. “Documentation” means Vendor’s standard manual related to use of the System. 

1. “Order” means an order for access to the System, executed as follows: An initial payment upon purchase. 

1. “Privacy Policy” means Vendor’s privacy policy, currently posted at https://diettypingsystems.com/privacy-policy/. 

1. “System” means Vendor’s Online Diet Typing Affiliate System. 

1.  “Term” is defined in Section 13.1 below. 

1.   THE SYSTEM.  

1. Use of the System. During the Term, Customer may access and use the System pursuant to the terms of any outstanding Order, including such features and functions as the Order requires. 

1. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System. 

1. Customer’s Clients. Customer shall make no representations or warranties regarding the System or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of Vendor, and Customer shall not create or purport to create any obligations or liabilities for Vendor. Vendor may reject any proposed Customer’s Client for any reason that does not violate applicable law, in its sole discretion. Customer shall be jointly and severally liable to Vendor for Customer’s Client’s compliance with the Terms and Conditions. Vendor shall have no obligation to provide support or other services, or other remedies to Customer’s Clients. 

1.   SYSTEM FEES. Customer shall pay Vendor the fee set forth in each Order for each Term. Customer shall also pay the Vender per passcode sold to the Customer, Customer Client’s, or Users of the System. Vendor will not be required to refund fees under any circumstances. 

1. Passcodes. Customers and their Users are required to purchase a passcode in order to generate a personalized dietary report and the supporting documents.  

1. The Customer will pay the Vendor a minimum of $10.00 per passcode. The Vendor may require the passcode purchase fee to be increased to cover processing costs. Recommended increases are $3.00 per passcode for every $100.00 charged to the User per passcode. 

1. The Customer may not allow a passcode to be purchased for less than $19.95 by a User.  

1.   CUSTOMER COMPENSATION. Customer will be compensated by Vendor when a User purchases a passcode from the System. Customer will receive the difference of the passcode purchase price in Section 3.1 and the Customer determined passcode purchase price for their Users. 

1. PayPal Merchant ID. Customer will supply Vendor with their PayPal Merchant ID in order to be paid the compensation. Compensation will be paid every Friday via PayPal Mass Payment system. 

1.   SYSTEM CUSTOMISATION. Certain areas of the System may be customized to fit the Customer’s uses.  

1. Customer Logos. Customer may provide their logo to be uploaded and displayed on the System, Report, Food List, and Supporting Documents. 

1. User Reports. Customer may request that User Reports not be displayed on the System. 

1. Supporting Documents. Customer may submit up to ten (10) customized documents to be uploaded and displayed on the System. All supporting documents must be subjected to approval by the Vendor before being uploaded and displayed. The supporting documents must adhere to the AUP. 

1. Deselection. Customer may request to have certain options deselected in the Health Conditions, Food Allergy and Intolerance, and Genetic and Other sections so as to not displayed certain selections on the System. 

1. Healing Bite Cookbooks. Customer may request to display, or not display, the Health Bite Cookbooks. 

1.   CUSTOMER DATA & PRIVACY.  

1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third-party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. 

1. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third-party website or service linked to the System or recommended or referred to through the System or by Vendor’s staff. 

1. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. 

1. Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users. 

1. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more. 

1. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor’s computers or other media, any data (“Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA. 

1. Aggregate & De-Identified Data. Notwithstanding the provisions above of this Article 6, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data and De-Identified Data in any way, in its sole discretion. (“Aggregate Data” refers to summaries of Customer Data, or of data that includes Customer Data, that do not include personally identifiable information or the names or addresses of Customer and any of its Users. “De-Identified Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users.) 

1.   CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS. 

1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except Customer’s Clients as specifically authorized by this Agreement; (b) provide System passwords or other sign-in information to any third party, except Customer’s Clients as specifically authorized by this Agreement; (c) share non-public System features or content with any third party, except Customer’s Clients as specifically authorized by this Agreement; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 7.1, including without limitation by Users, Vendor may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 7.1, or this Agreement, but Vendor is free to take any such action it sees fit. 

1. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other sign-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach. 

1. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data. 

1. Customer’s Clients & Other Users; System Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP, Terms and Conditions, Privacy Policy, or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized. 

1.   IP & FEEDBACK.  

1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws. 

1. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Customer’s Client or other User in question. Feedback will not constitute Customer’s confidential information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.) 

1.   CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within 3 business days; (c) the Documentation whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Vendor. 

1. Nondisclosure. Customer shall not use Confidential Information for any purpose. Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 9; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense. 

1. Injunction. Customer agrees that breach of this Article 9 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security. 

1. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 9.1 above (Nondisclosure) will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof. 

1. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information. 

1. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement: 

1. IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 

1. USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order. 

1.  REPRESENTATIONS & WARRANTIES.  

1. From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 10.1, Vendor, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the System and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 10.1 and for potential or actual intellectual property infringement by the System. 

1. From Customer.  

1. Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law. 

1. Re Customer’s Clients. Customer represents and warrants that, to the best of its knowledge: (i) each Customer’s Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement and the Terms and Conditions, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; (ii) Customer will not provide any inaccurate information about a Customer’s Client or other User to or through the System; and (iii) each Customer’s Client will be an individual 18 years or older or a minor 13 to 17 years with a legal guardians consent, or another entity authorized to do business pursuant to applicable law. 

1. Warranty Disclaimers. CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.  

1.   INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Customer’s Clients or other Users or by Customer’s or Customer’s Clients’ employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account, including by Customer’s Clients or other Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 11 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.) 

1.   LIMITATION OF LIABILITY. 

1. Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $10,000. 

1. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. 

1.   Term & Termination. 

1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date to provide the Order. Thereafter, the Term will continue indefinitely unless either party requests modification by written notice within 30 or more days. 

1. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting Vendor’s other rights and remedies, Vendor may suspend or terminate a Customer’s Client’s or other User’s access to the System at any time, without advanced notice, if Vendor reasonably concludes such Customer’s Client or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects Vendor to potential liability.  

1. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 8 (IP & Feedback), 9 (Confidential Information), 10.3 (Warranty Disclaimers), 11 (Indemnification), and 12 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. 

1. HEALTH DISCLAIMER. 

Diet Typing Systems, LLC makes no warranties as to the accuracy of our theories or the validity of our recommendations, nutritional or otherwise, since they have not been scientifically confirmed by the FDA. We provide information based on our years of experience and positive results that were observed in our clients. Certain persons considered experts may disagree with one or more of our concepts or recommendations. 

 

Our purposes are to inform and to educate only. We assume no responsibility for the correct or incorrect use of our information. The information we provide and the recommendations that we make should not be used to, nor are they intended to, nor do they in fact diagnose, treat, cure or mitigate any specific health problem. 

Diet Typing Systems, LLC accepts no liability for the effects that changes in exercise, diet, nutrition or supplements may cause in any client. A physician should be consulted BEFORE any such changes are made. 

 

If laboratory tests are recommended to clients, it is the clients’ responsibility to deliver all laboratory test results, now and in the future, to the clients’ personal physician for any medical interpretation. Any interpretation of laboratory tests results that are made by Diet Typing Systems, LLC are to be construed as nutritional interpretations only. They are not diagnostic, therapeutic or prognostic in nature. 

 

Diet Typing Systems, LLC, our lab partners, independent representatives, associates and affiliates accept no liability for any failure to identify any disease or medical condition. Laboratory tests and questioning are used only for the purpose of guiding us to the right type and volume of nutritional information to provide to the client based on the client’s profile. 

 

Diet Typing Systems, LLC disclaims all warranties of merchantability and warranties of fitness for a particular purpose, including, without limitation, the conditions implied by law of satisfactory quality, and the use of reasonable care and skill. The Company makes no warranties of any kind with respect to the accuracy, completeness, timeliness or reliability of information provided, whether that information is provided by Diet Typing Systems, LLC, its agents, or visitors to the company’s website. 

 

BY USING THIS WEBSITE AND ASSOCIATED QUESTIONNAIRE I HEREBY AGREE TO THE ABOVE STATEMENT AND UNDERSTAND THAT THE PURPOSE OF THE DIET TYPING SYSTEMS PROGRAM IS SOLELY TO PROVIDE INFORMATION CONCERNING MY INDIVIDUAL LIFESTYLE. I FURTHER UNDERSTAND THAT ANY RECOMMENDATIONS MADE ARE IN NO WAY INTENDED TO, NOR DO THEY IN FACT DIAGNOSE, CURE, TREAT, MITIGATE OR PREVENT ANY SPECIFIC ILLNESS OR DISEASE. 

 

1.   NOT HIIPA COMPLIANT. The System is NOT compliant with the US Health Insurance Portability Act (HIIPA) enacted in 1996. 

1.   MISCELLANEOUS. 

1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer. 

1. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to support@diettypingsystems.com and are deemed received 72 hours after they are sent. 

1. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control. 

1. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 16.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. 

1. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. 

1. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. 

1. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York, New York. This Section 16.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims. 

1. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern. 

1. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software or code provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software or code to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria). 

1. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. 

1. Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 13, Term & Termination). Customer’s continued use of the System following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 16.11, Vendor may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.