Effective: August 6th, 2019
These Proton for Business General Terms and Conditions (“General Terms“) are hereby accepted and agreed to by the company identified within the Proton for Business sign-up process (“Company”), and constitute a legally binding agreement by and between Company and Proton Technology, LLC a California limited liability company (“Proton“) or DBA Yamimeal (“Yamimeal” ). These General Terms set forth the terms and conditions under which Company may establish an Proton for Business corporate account (“Corporate Account”), which Proton makes available to Company through the Yamimeal Platform in connection with one or more Proton Product, as set forth herein. Company’s access to and use of the Yamimeal Platform in connection with any Proton Product is subject to these General Terms and each applicable Product Addendum, as may be modified or updated by Proton from time to time, effective upon posting an updated version of these General Terms and/or the applicable Product Addendum on the Proton website. Proton will provide Company with notice of any such modifications or updates through the email Proton has on file and/or through Yamimeal Platform. Company is responsible for updating contact information through the Yamimeal Platform and regularly reviewing the Yamimeal Platform, General Terms and any applicable Product Addendum for updates and information from Proton. Continued use of the Proton Service or any Proton Product after any such modifications or updates shall constitute Company’s consent to such changes. Capitalized terms used but not otherwise defined in the General Terms shall have the respective meanings ascribed to such terms in the applicable Product Addendum.
1. The following terms, as may be used in the Agreement, shall have the meanings set forth below: “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of that Affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that Affiliate on any distribution by it of all of its income or the majority of its assets on a winding up of Company. “Authorized User” shall mean an individual authorized to use and link to Company’s Corporate Account, or an individual that is authorized to use Proton Services in connection with the Corporate Account, as such term is used in the applicable Product Addendum. “Data Protection Law” means all laws and regulations applicable to the personal data under the Agreement, including as applicable the laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the EU General Data Protection Regulation (2016/679) (GDPR). “End User Terms” shall mean the terms and conditions applicable to all users of the Proton Service, available at https://www.yamimeal.com/legal/user-terms-of-use, as may be updated by Proton from time to time. “Personal Data” means any information in connection with this Agreement that can reasonably be used to identify an individual, or that may otherwise be considered personal data “Service Fee” shall mean the service fees applicable to User Charges and/or Company’s use of the Proton Services, if any, as set forth in a Product Addendum or otherwise agreed to between Proton and Company. “Yamimeal App” shall mean Proton’s mobile application or mobile website https://www.yamimeal.com/ required for use of the Proton Service, as may be updated by Proton from time to time. “Proton for Business” means Proton’s suite of enterprise products, which allow business customers to access Proton Services for business purposes. “Proton Service” shall mean Proton’s technology service that, when used in conjunction with the Yamimeal App, enables users and Administrators to request logistics and/or delivery services from independent third-party providers. “User Charges” shall mean charges incurred by Authorized Users or Administrators, as may be the case, for logistics, food purchases and related food delivery, or other services obtained through the use of the Proton Service, including any applicable tolls, foreign transaction fees, taxes, and any other fees or charges that may be due for a particular use of the Proton Service.1.11 The terms “controller”, “data subject”, “personal data”, “processing” and “processor” as used in this Agreement have the meanings given in the GDPR.
2. Proton Products; Incorporation.
2.1 In connection with Company’s acceptance of these General Terms, Company may also elect to utilize one or more of the following Proton for Business products: Yamimeal (each, a “Proton Product”). Company may elect to utilize a Proton Product when creating a Corporate Account or at any time during the Term. By electing to use a Proton Product, Company agrees to accept the relevant additional Proton Product terms for such Proton Product (each, a “Product Addendum”) as follows:
2.2 Company’s election to utilize a particular Proton Product neither obligates nor restricts Company from utilizing any other Proton Product. Any Product Addendum accepted and agreed to by Company is hereby expressly incorporated herein and constitutes part of these General Terms (these General Terms and any such Product Addenda, collectively, the “Agreement”). All references to Authorized User(s) in these General Terms shall apply only if Company has agreed to the Yamimeal Product Addendum. All references to Company User(s) in these General Terms shall apply only if Company has agreed to the Proton Product Addendum.
3. Term and Termination.This Agreement shall commence upon Company’s acceptance of the Agreement and shall remain in effect until terminated as set forth herein (the “Term”). Either party may terminate this Agreement or any Product Addendum with or without cause upon five (5) days’ advance written notice to the other party. Termination of one Product Addendum shall not terminate any other Product Addendum then in effect. All Product Addenda shall automatically terminate upon the termination of these General Terms. All outstanding payment obligations and Sections 1, 2, 5, 8-12 of these General Terms shall survive the termination of this Agreement.
4. Account Administration.
4.1. Company Yamimeal Platform and Access to Proton Products. Upon execution of this Agreement, Proton will establish Company’s Corporate Account that will enable Company to access Proton’s browser-based online Yamimeal Platform for Proton for Business, which includes access to Proton Product that a Company has agreed to utilize through a Product Addendum (“Yamimeal Platform”). Proton’s contact with Company shall be by way of any individual representative designated by Company as an “administrator” through the Yamimeal Platform (“Administrator”). In addition to the Yamimeal Platform features described in an applicable Product Addendum, the Yamimeal Platform will enable Company to (a) view each Proton Product Company has accepted and agreed to utilize through a Product Addendum; (b) view detailed trip or other service information, which may include, depending on the Proton Products being used, without limitation, Authorized Users’ name together with status, pick-up address and drop-off address, trip route, distance, duration, fare amount, service type, trip ID, restaurant name, meal information, delivery address, delivery time, User Charges, expense memo, and driver data (e.g. first name, telephone number, vehicle and license plate) (“Yamimeal Platform Data”), (c) prepare and review activity reports using such Yamimeal Platform Data, (d) add and remove Administrators, (e) manage and update the Company credit card on file, (d) review and manage payment statements, and (e) settle outstanding balances on the Corporate Account. Proton reserves the right to add, remove and update features and functionality of the Yamimeal Platform at any time. Proton agrees to use commercially reasonable efforts to provide the Yamimeal Platform to Company as set forth herein.
4.2. Administration. Company may appoint additional Administrators at its discretion. Company agrees to (a) maintain all Yamimeal Platform login credentials in confidence, (b) only permit an authorized Administrator to access the Yamimeal Platform, and (c) update as necessary all information of the lead Administrator and other authorized Administrators to ensure that it is current, accurate, and complete. Company shall be responsible for all activity that occurs under its Yamimeal Platform login credentials.
4.3. Authorized User and Administrator Updates. It is Company’s sole responsibility to keep and maintain an accurate list of current Authorized Users or Administrators authorized to bill User Charges to Company’s Corporate Account for each separate Proton Product. Proton may review the current list of Authorized Users and Administrators, as may be the case, from time to time via the Yamimeal Platform to maintain and support the Proton Service and to ensure compliance with this Agreement.
4.4. Responsibility for User Activity. Company agrees that (a) Company is responsible for all User Charges incurred by Authorized Users and Administrators via the Corporate Account, regardless of whether or not such User Charge was authorized by Company and (b) User Charges may be subject to price changes at any time, including without limitation, occasional increases during periods of high demand as further described in the End User Terms. Further, Company agrees that Proton shall not be responsible for User Charges incurred by an Authorized User or Administrator, as may be the case, after Company has attempted removal of such Authorized User or Administrator from the Corporate Account to the extent Company provides incomplete or inaccurate Authorized User or Administrator removal information via the Yamimeal Platform. Finally, as between Company and Proton, Company shall be responsible for the User Charges incurred due to fraudulent or other unpermitted activity on the part of an Authorized User’s or Administrator’s use of the Corporate Account to access Proton Services. Company shall notify Proton promptly upon discovery of fraudulent or unpermitted activity occurring under Company’s account.
4.5. Restrictions. Company agrees to use the Corporate Account and Yamimeal Platform solely as set forth in this Agreement. Company shall not, and shall not authorize others to, (a) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Yamimeal Platform, Proton Service, Proton App or Yumimeal App, except to the extent allowed by applicable law, (b) sublicense, lease, rent, sell, give, or otherwise transfer or provide the Proton Service, Proton App or Yumimeal App to any unaffiliated third party, (c) upcharge, increase or otherwise modify the User Charges for any usage of the Proton Service or (d) impose any additional fees or charges on an Authorized User related to use of the Yamimeal Platform or Proton Service. Proton reserves all rights not expressly granted to Company or a third party, including Authorized Users, under this Agreement.
5. Fees and Monthly Billing.
5.1. User Charges and Service Fees. User Charges and Service Fees applicable for each Proton Product shall be as set forth in the applicable Product Addendum.
5.2. Billing Options. Company agrees regardless of which billing option the Company select, the Company will use ACH or Credit Card payment method to pay all outstanding charges, fees and taxes when it comes due.
5.3 Taxes. Unless otherwise indicated on a receipt, all Service Fees and User Charges, each to the extent applicable, are exclusive of applicable taxes, and Company agrees to be responsible for the payment of any such taxes assessed on such Service Fees and User Charges, including, but not limited to, all sales, use, VAT or similar taxes, except for taxes based on Proton’s income. All payments shall be processed in the local currency applicable to the geography of the Authorized User’s applicable ride except in certain instances when Proton may process foreign transactions in United States dollars. All payments are nonrefundable except as may be expressly provided otherwise herein. Each party shall be responsible for its costs and expenses associated with its performance under this Agreement.
6. Proprietary Rights.
6.1 License to Marks; Restrictions. The term “Marks” shall mean the trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of Company (“Licensor”). Company hereby grants Proton (“Licensee”), solely during the Term, a limited, royalty-free, worldwide, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use and display the Licensor’s Marks. All use of a Licensor’s Marks by Licensee will be in the form and format approved by Licensor, and Licensee will not otherwise use or modify Licensor’s Marks without Licensor’s prior written consent. All goodwill related to Licensee’s use of Licensor’s Marks shall inure solely to the benefit of Licensor. Marks will at all times remain the exclusive property of Licensor. Except as expressly set forth herein, Licensor does not, and shall not be deemed to, grant Licensee any license or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved by Licensor. Company hereby grants Proton the right to display Company’s Marks throughout the Term in accordance with this Section: (i) on Proton’s website, and (ii) in any list of companies describing with whom Proton has engaged in similar marketing or promotional activities, as long as such list includes at least two other companies and such use is in compliance with Company’s brand guidelines, if any. This right to use Company’s Marks shall not require prior written approval and shall continue after this Agreement is terminated, unless Company provides Proton with written notice that Company is terminating such right.
6.2 No Development. EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Proton and Company prior to the commencement of any such activities.
6.3 Ownership. Proton and its Affiliates are and shall remain the owners of all right, title and interest in and to the Yamimeal Platform, Proton Service, Proton App, Yamimeal App, and Proton Personal Data (including, without limitation, Yamimeal Platform Data) including any updates, enhancements and new versions thereof, all data related to the use of the Yamimeal Platform and Proton Services, and all related documentation and materials provided or made available to Company or any proposed or current Authorized User in connection with this Agreement.
6.4 No Publicity. Other than as expressly set forth herein, neither party may use or reference the other party’s name, logo, trademarks or service marks in a press release or otherwise without the prior consent of such other party in each instance.
7. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with the Agreement, whether orally or in physical form. However, Confidential Information shall not include information (a) previously known by Receiving Party without an obligation of confidentiality, (b) acquired by Receiving Party from a third party which was not, to Receiving Party’s knowledge, under an obligation of confidentiality, (c) that is or becomes publicly available through no fault of Receiving Party, or (d) that Disclosing Party provides written permission to Receiving Party to disclose, but only to the extent of such permitted disclosure. Receiving Party agrees that (a) it will use Confidential Information solely for the purposes permitted under this Agreement and (b) it will not disclose the Confidential Information to any third party other than Receiving Party’s employees or agents who are bound by obligations of nondisclosure and restricted use at least as strict as those contained herein. In the event Receiving Party receives a subpoena, administrative or judicial order, or any other request for disclosure of any Confidential Information of Disclosing Party, Receiving Party will give Disclosing Party prompt written notice of such subpoena, order or request and allow Disclosing Party to assert any available defenses to disclosure. Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care.
8. Privacy and Data Security.
8.1 Roles of Parties. Each party is an independent controller of the Yamimeal Platform Data. Company will only process Yamimeal Platform Data for administrative purposes, to manage access control and for activity review purposes.
8.2 Compliance with Data Protection Laws. Each party shall comply with the obligations applicable to it under the Data Protection Law with respect to the processing of Personal Data.
8.3 Restrictions. Company agrees that any Yamimeal Platform Data obtained in connection with this Agreement shall be used: (i) solely for the purposes set forth in Section 8.1 of these General Terms, or in connection with the use of the Proton Service, and for no other purpose, unless expressly authorized in writing by Proton, and (ii) in accordance with the purposes communicated to the data subjects. Company shall not use Yamimeal Platform Data in any way that harms Proton or that benefits a competitor of Proton. Company agrees that it shall not disclose Yamimeal Platform Data to any third parties, except as necessary for the purposes set forth herein. Company shall not rent or sell Yamimeal Platform Data for any purpose.
8.4 Security. Company shall implement appropriate technical and organizational measures to protect Yamimeal Platform Data against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach of Company’s security measures (“Information Security Incident”).
8.5 Notification. Company shall promptly notify Proton in the event that Company learns or has reason to believe that an Information Security Incident has occurred in relation to Yamimeal Platform Data. This notification includes at least: (1) the nature of the breach of security measures; (2) the potentially compromised personal data and data subjects; (3) the duration and expected consequences of the Information Security Incident; and (4) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, Company shall (a) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident, and (b) provide Proton with assurances reasonably satisfactory to Proton that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Breach occurs as a result of an act or omission of Company, and if Proton determines that notices (whether in Proton’s or Company’s name) or other remedial measures are warranted, Company shall, at Proton’s request and at Company’s cost and expense, undertake the aforementioned remedial actions.
8.6 Data Transfers. To the extent this Agreement involves the transfer of Yamimeal Platform Data to a jurisdiction outside the EEA, Company agrees that the Standard Contractual Clauses shall apply.
8.7 Product Addenda. The specific privacy and data-related provisions for each Proton Product are included in the applicable Product Addendum.
8.8 Communications. See section 12.3 of these General Terms.
9. Warranties; Disclaimer.
9.1 Mutual Warranties. Each party hereby represents and warrants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder, (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party, and (c) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin.
9.2 Company Warranties. Company represents and warrants that (a) Company has all rights and consents, where necessary, to provide Proton with the Company Personal Data and any other information provided to Proton hereunder, (b) Company will use Yamimeal Platform Data solely for legitimate business purposes including business expense, processing, accounting, and budgeting purposes, (c) is in compliance and shall remain in compliance during the Term, with all applicable local, city, state, federal, national, and international laws, rules and regulations, including those relating to data protection, privacy, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security; (d) Company will only share and provide access to Yamimeal Platform Data to Company personnel who have a business need to access such Yamimeal Platform Data, (e) Company will not disclose Yamimeal Platform Data to any third party, unless expressly authorized in writing by Proton, and who are in each case bound by privacy and security obligations regarding Proton Personal Data at least as restrictive as those contained herein (f) Company will not rent or sell Yamimeal Platform Data for any purpose not authorized by Proton, (g) Company will not use Yamimeal Platform Data in any way that harms Proton or benefits a competitor of Proton, (h) Company’s Marks as may be provided to Proton pursuant to this Agreement will not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party and (h) that Company is not a government or quasi-government entity, or otherwise owned, controlled by, or created by a government entity. Company hereby represents that the individual clicking to accept these General Terms is authorized by Company to bind, and does hereby bind, Company to the terms hereof.
9.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROTON PROVIDES THE PROTON SERVICE, PROTON APP AND YAMIMEAL APP “AS IS” AND WITHOUT WARRANTY. PROTON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE YAMIMEAL PLATFORM, PROTON SERVICE, PROTON APP AND YAMIMEAL APP WILL MEET COMPANY’S REQUIREMENTS OR THAT THE OPERATION OF THE YAMIMEAL PLATFORM, PROTON SERVICE, PROTON APP OR YAMIMEAL APP WILL BE UNINTERRUPTED OR ERROR FREE. PROTON HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE YAMIMEAL PLATFORM, PROTON SERVICE, PROTON APP, OR THE YAMIMEAL APP, AND (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY ACKNOWLEDGES AND AGREES THAT THE PROTON SERVICE IS A TECHNOLOGY SERVICE THAT ENABLES ACCESS TO REQUEST ON-DEMAND GROUND TRANSPORTATION AND LOGISTICS SERVICES PROVIDED BY INDEPENDENT THIRD-PARTY PROVIDERS. PROTON IS NOT A LOGISTICS PROVIDER. PROTON DOES NOT GUARANTEE AVAILABILITY OF LOGISTICS SERVICES, ON-TIME ARRIVALS OR DEPARTURES THEREOF, OR ANY OTHER SERVICES LEVELS RELATED TO INDEPENDENT LOGISTICS PROVIDERS THAT MAY BE OBTAINED VIA THE PROTON SERVICE.
10.1 Company (the “Indemnifying Party”) will indemnify, defend and hold harmless Proton (the “Indemnified Party”), its Affiliates and their respective directors, officers, employees, agents, successors and assigns against all claims, damages, losses and expenses (including reasonable outside attorney fees) with respect to any third-party claim arising out of or related to (a) a breach (or claim that, if true, would be a breach) of any of the Indemnifying Party’s representations or warranties in this Agreement or any Product Addendum, or (b) the infringement of a third party’s intellectual property rights by the Indemnifying Party’s Marks, but only if such Marks have been used by the Indemnified Party in the manner approved by the Indemnifying Party.
10.2 The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
11. Limits of Liability.OTHER THAN WITH RESPECT TO (i) A PARTY’S INDEMNIFICATION OBLIGATIONS, (ii) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7 HEREIN, OR, (iii) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN SECTION 9 HEREIN, (A) IN NO EVENT SHALL PROTON OR COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY COLLECTIVELY ARISING OUT OF THIS AGREEMENT AND ALL PRODUCT ADDENDUM, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF PROTON OR COMPANY (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE COLLECTIVELY UNDER THIS AGREEMENT AND ALL PRODUCT ADDENDUM FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE GREATER OF (X) FIVE THOUSAND DOLLARS ($5,000), AND (Y) THE TOTAL AMOUNTS PAID OR PAYABLE BY COMPANY TO PROTON HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY.
12.1 This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its choice or conflict of laws provision. Any dispute, controversy, or any claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach termination or validity thereof, including, without limitation, this arbitration clause, must be solely and finally settled by confidential arbitration in San Francisco, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. An award rendered in connection with arbitration pursuant to this section shall be final and binding upon the parties, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. No provision of this subsection limits the rights of a party to this Agreement to obtain provisional, injunctive, or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration.
12.2 Neither party has the right to arbitrate on a class action basis any dispute, controversy, or claim arising out of or relating to these Terms, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including, without limitation, this arbitration clause.
12.3 Company shall not, in its use of the Proton Service or any Proton Product under this Agreement, discriminate against any Authorized User, employee, volunteer, or participant, or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Proton and Company. Company acknowledges and agrees that upon Proton’s receipt of evidence of Company’s discrimination under any of these categories, Proton shall have the right to immediately terminate this Agreement following notice to Company.
12.4 Any notice required or permitted to be delivered to Company by this Agreement shall be posted to the Company’s Yamimeal Platform. Any notice required or permitted to be delivered to Proton by this Agreement shall be submitted via firstname.lastname@example.org.
12.5 The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
12.6 In the event any provision of this Agreement, or any Product Addendum, is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect. Any delay in or failure by either party in performance of this Agreement, or a Product Addendum, shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the applicable agreement.
12.7 This Agreement and each of the Product Addendum may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this agreement, upon notice to the other party, to (a) an Affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Agreement and all of the Product Addendum shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.
12.8 Nothing in this Agreement, or any Product Addendum, shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties, and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party.
12.9 Each party shall be responsible for the payment of its own tax liability arising from these General Terms or any Product Addendum.