Business Terms and Conditions

Last updated on October 6, 2023.

These Business Terms of Service (the “Business Terms”) is between Timeshifter Inc., a Delaware corporation ("Timeshifter"), and the organization agreeing to these terms ("Customer"). By purchasing subscriptions online or signing an Order Form, you have accepted and agreed to these Business Terms. Timeshifter and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. DEFINITIONS.

    • "Timeshifter Advice” means Timeshifter’s proprietary advice aimed to address specific circadian challenges, based on the latest circadian science and personalized to each Authorized User.

    • “App Services” means Timeshifter’s iOS and Android apps that can be used by Authorized Users to access Timeshifter Advice pursuant to an App License.

    • “App License” means an individual user license for the App Services, purchased by Customer pursuant to an applicable SOW.

    • “API Service” means Timeshifter’s application programming interface that it makes available to its customers to create personalized Timeshifter Advice for Authorized Users pursuant to an API License.

    • “API License” means a license to utilize or interact with the Timeshifter API to deliver Timeshifter Advice to Authorized Users pursuant to an applicable SOW.

    • “Product” means any equipment, apparel, hardware, or other product sold or made available by or on behalf of Timeshifter to Customer pursuant to an applicable Order Form.

    • “Professional Services” means any consulting, advisory, presentation, and/or other professional services, if any, to be provided by Timeshifter to Customer as set forth in the relevant SOW.

    • “Authorized User” means a customer, member, employee, or others whom Customer has authorized to access the Timeshifter Advice through the use of the API Service or App Services pursuant to an applicable SOW.

    • “Timeshifter IP” means the API Service and App Services, the underlying software provided in conjunction with the API Service and App Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods, content, text, videos, images, branding, presentation materials, specifications, designs, diagrams, models, plans, blueprints, documents, trade secrets, and other materials used to provide or deliver the API Service, App Services, or any Professional Services, or incorporated into any Products, Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

    • “API Applications” means paid or unpaid web or other software services or applications developed by Customer that utilize or interact with the Timeshifter API to deliver Timeshifter Advice to Authorized Users, and are authorized to be published pursuant to an applicable SOW.

    • “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Timeshifter in connection with Customer’s use of the API Service or App Services, or Timeshifter’s performance of the Professional Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Timeshifter and made available through or in connection with the Services.

    • “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the API Service or App Services.

    • “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Timeshifter to Customer (including any revised versions thereof) relating to the API Service and App Services, which may be updated from time to time upon notice to Customer.

    • “SOW, Order Form” means a (i) mutually executed statement of work or other mutually agreed upon ordering document which sets forth the applicable API Service or App Services and corresponding fees; (ii) purchase order for Products issued by Customer and accepted by Timeshifter in writing; or (iii) mutually executed statement of work which sets forth the applicable Professional Services to be provided by Timeshifter and corresponding fees, in each case which references this Agreement.

    • “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority, or other entity.

  2. SERVICES.

    • Services. Timeshifter will provide the Services to Customer subject to and in accordance with the applicable SOW(s) and Order Forms, each of which are deemed incorporated herein by reference (the “Services”). A SOW or Order Form will not be deemed entered into until signed by an authorized representative of each Party.  The terms and conditions governing Customer’s use of and/or access to the API Service will be set forth on the relevant SOW. The terms and conditions governing Customer’s use of and/or access to the App Services will be set forth on the relevant SOW.  The terms and conditions governing Timeshifter’s performance of any Professional Services will be set forth on the relevant SOW.  The terms and conditions governing Customer’s purchase of any Products will be set forth on the relevant Order Form. The provision of Services and Products under such SOWs and Order Forms will be subject to the terms and conditions of this Agreement.

    • Third-Party Services.  Certain features and functionalities incorporated into or used in connection with the Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology, and content (collectively, “Third-Party Services”).  Timeshifter does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the API Service, App Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.  Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Services.

    • Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Timeshifter reserves and, as between the Parties will solely own, the Timeshifter IP and all rights, title and interest in and to the Timeshifter IP.  No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

    • Feedback.  From time to time Customer or its employees, contractors, or representatives may provide Timeshifter with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”).  Customer hereby grants Timeshifter a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Timeshifter’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.

  3. FEES AND PAYMENT.

    • Fees.  Customer will pay Timeshifter the non-refundable fees set forth in the relevant SOW or Order Form in accordance with the terms therein (“Fees”) and without offset or deduction.  Unless otherwise set forth on the applicable SOW or Order Form, Timeshifter will submit an invoice for the Fee, and Customer will pay the amounts set forth on such invoice within thirty (30) days after the date of Customer’s receipt thereof.

    • Expenses.  Customer will reimburse Timeshifter, at cost, for all pre-approved disbursements and expenses incurred by Timeshifter in connection with the provision of the Services.

    • Payments.  Payments due to Timeshifter under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Timeshifter or such other payment method mutually agreed by the Parties.  All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement.  If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Timeshifter may suspend Services until all payments are made in full.  Customer will reimburse Timeshifter for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

    • Taxes.  Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Timeshifter hereunder, other than any taxes imposed on Timeshifter’s income.  Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Timeshifter hereunder, Customer will pay an additional amount, so that Timeshifter receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

    • Suspension.  Timeshifter reserves the right to suspend the Services to Customer with notice in the event of Customer non-payment of past due invoice(s) which is not cured within fifteen (15) days of Timeshifter’s notice to Customer of such unpaid invoice(s).

  4. CONFIDENTIAL INFORMATION.

    • Definition.  As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  For clarity, the Services and the Documentation will be deemed Confidential Information of Timeshifter.  However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

    • Obligations.  The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Timeshifter may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data.  The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

    • Exceptions.  The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

  5. CUSTOMER MATERIALS AND DATA.

    • Ownership.  Timeshifter acknowledges that, as between Customer and Timeshifter and except as set forth in Section 5(b), Customer owns and retains all right, title and interest in and to all Customer Materials.

    • License.  Notwithstanding anything in this Agreement to the contrary, Customer hereby grants to Timeshifter (i) a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display and perform publicly, and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Services, and (ii) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right and license to use, host, reproduce, display and perform publicly, and modify the Customer Materials solely for related internal operations and functions such as operational analytics and reporting, internal financial reporting and analysis, audit functions, archival, and other internal business purposes. Notwithstanding the foregoing, Customer’s rights and obligations with respect to any data collected directly from Authorized Users of the Services will be governed in accordance with Timeshifter’s Privacy Policy.

    • Data Security.  Each Party will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.

  6. REPRESENTATIONS AND WARRANTIES. 

    • Mutual Warranties.  Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

    • Timeshifter Warranties.  Timeshifter hereby represents and warrants to Customer that: (i) the API Service and App Services operate substantially in accordance with the Documentation; (ii) Timeshifter conducts commercially reasonable and industry standard virus and security scans with respect to the API Service and App Services.

    • Performance Warranties.  Timeshifter hereby represents and warrants to Customer that it will perform the Professional Services in a workmanlike, professional manner consistent with applicable industry standards.  This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services.  As Customer’s sole and exclusive remedy and Timeshifter’s entire liability for any breach of the foregoing warranty, Timeshifter will promptly re-perform any Professional Services that fail to meet this limited warranty.

    • Product Warranties.  Timeshifter does not warrant or support Products, whether or not they are included by Timeshifter in portions of the Services or otherwise, except as specified in an Order Form.  All representations, warranties and indemnification obligations with respect to any Products are provided by the applicable Product manufacturer, and Timeshifter hereby “passes through” any warranties from such manufacturers to the extent permissible. Such representations, warranties and indemnification obligations offered by such manufacturers will be the sole and exclusive remedy of Customer with respect to the use and operation of the Products.

    • Customer Warranties.  Customer hereby represents and warrants to Timeshifter that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Timeshifter’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

    • Disclaimer.  Timeshifter has informed Customer and Customer understands that the API Service and App Services have not been evaluated by the U.S. Food and Drug Administration or other similar regulatory agencies, and that the API Service and App Services are not intended to diagnose, treat, cure, or prevent any disease, and is intended for healthy adults, 18 years of age or older.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE API SERVICE AND APP SERVICES, PROFESSIONAL SERVICES, PRODUCTS AND OTHER TIMESHIFTER IP ARE PROVIDED ON AN “AS IS” BASIS, AND TIMESHIFTER MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE TIMESHIFTER IP, THE API SERVICE AND APP SERVICES, PROFESSIONAL SERVICES, PRODUCTS OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TIMESHIFTER HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, TIMESHIFTER HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES OR PRODUCTS WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.  IN THE EVENT THAT THE API LICENSE OR APP LICENSES ARE NONFUNCTIONAL FOR ANY REASON, THE CUSTOMER’S SOLE REMEDY, AND TIMESHIFTER’S SOLE LIABILITY, WILL BE THE REPLACEMENT OF SUCH API LICENSE OR APP LICENSES, OR REFUND OF TIMESHIFTER’S NET RECEIPTS RELATED TO THE SALE OF SUCH API LICENSE OR APP LICENSES.

  7. INDEMNIFICATION.

    • Timeshifter Indemnification.  Subject to Section 7(d), Timeshifter will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s authorized use of the API Service or App Services infringes or misappropriates such third party’s intellectual property rights and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Timeshifter (including reasonable attorneys’ fees) resulting from such Claim.  The foregoing indemnification obligation will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the API Service or App Services that have been provided by Timeshifter; (iv) modifications to the API Service or App Services by anyone other than Timeshifter; or (v) combinations of the API Service or App Services with software, data or materials not provided by Timeshifter.

    • IP Remedies.  If Timeshifter reasonably believes the API Service or App Services (or any component thereof) could infringe any third party’s intellectual property rights, Timeshifter may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the API Service or App Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue its use.  If Timeshifter determines that neither alternative is commercially practicable, Timeshifter may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.  In the event of any such termination, Timeshifter will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion.  The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the API Service or App Services.

    • Customer Indemnification.  Subject to Section 7(d), Customer will defend Timeshifter against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s intellectual property rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) use of the Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any violation of the API Service or App Services Terms of Use by any Authorized User, and in each case, will indemnify and hold harmless Timeshifter against any damages and costs awarded against Timeshifter or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

    • Indemnification Procedures.  The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

  8. LIMITATIONS OF LIABILITY. EXCEPT FOR: (A) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (B) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (C) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT OR (D) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TIMESHIFTER IP OR THE PROVISION OF THE API SERVICE, APP SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL TIMESHIFTER’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE TIMESHIFTER IP OR THE PROVISION OF THE SERVICES OR PRODUCTS EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TIMESHIFTER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT TIMESHIFTER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN TIMESHIFTER AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

  9. TERM AND TERMINATION.

    • Term.  This Agreement will be effective from the Effective Date until terminated pursuant to this Section (the “Term”). Either Party may terminate this Agreement or any individual SOW or Order Form, effective on written notice to the other Party, if the other Party materially breaches this Agreement or such SOW or Order Form, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.  Either Party may terminate this Agreement without cause by giving the other Party thirty (30) days written notice; provided however, that, where terminated in accordance with this Section, in the event that the term of a SOW or Order Form extends beyond the termination of this Agreement, this Agreement will continue in full force and effect with respect to such SOW or Order Form until the termination or expiration thereof.

    • Effect of Termination.  Upon expiration or termination of this Agreement: (i) the rights granted to the Services will terminate, subject to any in-effect SOWs as described in Section 9(a); and (ii) Customer will return or destroy, at Timeshifter’s sole option, all Timeshifter Confidential Information in its possession or control, including permanent removal of such Timeshifter Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Timeshifter’s request, certify in writing to Timeshifter that the Timeshifter Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.  This Section 9 and Sections 1, 2(c), 2(d), 3, 4, 5, 6(f), 7, 8, and 11 will survive any termination or expiration of this Agreement.

  10. PUBLICITY.  Subject to the provisions of Section 4, each Party will have the right to publicly announce the existence of the business relationship between the Parties.  In addition, during the term of Customer’s access and use of the API Service or App Services, Timeshifter may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Timeshifter’s website and in its marketing materials to identify Customer as Timeshifter’s customer, and for the purpose of providing the Products and Services to Customer, provided that Timeshifter will use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.

  11. GENERAL.

    • Entire Agreement.  This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

    • Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the applicable SOW or Order Form or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 11(b).  Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.

    • Dispute Resolution Procedure. Within five (5) business days of the receipt by a Party or Parties of a notice from another Party or Parties of the existence of a dispute, claim or controversy relating to this Agreement (the “Dispute Notice”), representatives of senior management of each Party will meet and attempt to resolve the dispute. If any dispute is not resolved within twenty (20) days of receipt of the Dispute Notice, then the dispute will be submitted to JAMS for mediation in New York, New York. Each Party will provide to JAMS and the other Party a written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings, will participate in the mediation in good faith, and will share equally in its costs. If no mediator has been agreed upon by all the disputing Parties within ten (10) days of submission of the dispute to JAMS for mediation, then either Party may request that JAMS appoint a mediator. If the dispute has not been resolved within ninety (90) days of submission to JAMS for mediation, then, on the request of any Party, the dispute will be referred to litigation in a court of competent jurisdiction in accordance with the terms of this Agreement. All communications made in connection with this section will be confidential and will not be referred to, or admissible for any purpose, in any subsequent proceedings. Nothing in this Section will prohibit or limit either party from pursuing any claim for injunctive relief without first providing a Dispute Notice. There will be no time limit on when a Party may bring a claim, other than as required by applicable law.

    • Governing Law; Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.

    • Assignment.  Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer this Agreement without such consent will be void.  Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

    • Equitable Relief.  Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

    • Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics (including SARS-CoV-2 (COVID-19) and any variations or mutations thereof), epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.  Subject to the following sentence, if Timeshifter is forced to cancel any live events, such as Town Hall Talks or Live Webinars, included in the Services due to such an occurrence, Customer and Timeshifter will reschedule such event on the same terms as stated in the applicable SOW. If Timeshifter is not able to deliver one or more the live events as stated in the applicable SOW with the expert named in such SOW because of his death or disability, or other reason personal to such expert, Timeshifter will engage someone with comparable expertise to replace such expert.

    • Subcontracting.  Timeshifter may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Timeshifter remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. Stripe), Timeshifter will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Timeshifter.

    • Export Regulation.  Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Products, API Service, App Services or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.

    • U.S. Government End Users.  The API Service, App Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations.  Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.

    • Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties.  Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

    • No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.