The Electric Mail Company Inc.
Acceptable Use Policy
Customer agrees to use, and to cause its' Users to use, the Services in a courteous and cooperative manner, and so as not to abuse the Services or the custom and user etiquette in place from time to time respecting the use of the Internet, and so as not to violate or affect the rights of others. Without limiting the generality of the foregoing, Customer agrees not to use the Services so as to violate the law, or to misuse the proprietary information or property of others for his or her own purposes or otherwise, and not to make publications which are threatening or defamatory or otherwise injurious to the safety, business or reputation of others.
Without limiting the generality of the foregoing, Customer shall not do any of the following or permit any of Customer's Users, or other third parties to do any of the following:
1.disclose private communications without permission to parties other than the intended recipient, or disclose confidential information;
2.post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, or profane information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, provincial, state, national or international law, including without limitation, export control laws and regulations;
3.post or transmit any information or software that Customer is aware contains a virus, worm, or other harmful component;
4.upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Internet which is protected by copyright or other proprietary right, without obtaining the permission of the copyright owner or right holder;
5.falsify User information provided to Electric Mail (EMC) or to other users of the Services in connection with the use of an EMC Service;
6.account sharing, including without limitation, letting third parties use your account and password;
7.spamming or other advertising that is objectionable to EMC in its sole discretion, including without limitation, sending unsolicited mass emailings to more than twenty-five (25) email users if such unsolicited emailings provoke complaints from the recipients, posting a single article or advertisement to more than ten (10) Usenet or other news groups, forums, email mailing lists or other similar groups or lists, and posting to any Usenet or other news group, forum, email mailing lists or other similar group or list articles which are off-topic according to the charter or other published FAQ or description of the group or list; and
8.engaging in any of the foregoing activities using the service of another provider, but channeling such activities through an EMC account or remailer, or using an EMC account as a mail drop for responses.
9.operate any open relay (a mail server that accepts and transmits mail for one or more 3rd party domains) that is connected or can connect to Electric Mail servers or networks.
Customer shall not use the Services to store (1) any "protected health information" (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191), or (2) any other type of information that imposes independent obligations upon EMC.
Electric Mail reserves the right to implement without notice on a Customer wide basis technical measures to block excessive load, whether intentional or unintentional, caused by repeated or excessive transmission of data over
Electric Mail servers and networks that Electric Mail considers in its sole discretion would cause degradation to any service or network.
EMC considers the above practices to constitute abuse of EMC's Services and of the recipients of such unsolicited mailings or postings or both, who often bear the expense. Engaging in one or more of these practices will result in termination of the Services.
EMC reserves the right to implement without notice on a Customer-wide basis technical mechanisms which block multiple postings as described above, including without limitation incoming and outgoing unsolicited advertising or spam mail.
Nothing contained in this policy shall be construed to limit EMC's actions or remedies in any way with respect to any of the foregoing activities, and EMC reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including without limitation, all rights and remedies available to it at law or in equity.
Schedule B to Electric Mail Company Corporate Services Agreement
- General Terms and Conditions -
1.DEFINITIONS. In this Agreement, unless the context clearly requires otherwise, the following terms have the following meanings, and all other capitalized terms have the meaning ascribed elsewhere in this Agreement (including the Cover Page and Schedules):
(a)"Acceptable Use Policy" means EMC's Acceptable Use Policy, as amended from time to time by EMC in its sole discretion.
(b)"Account" means a discrete email address that is or may be used by a single User.
(c)"Customer Data" means electronic mail, messages, and other data and information accessible, communicated, obtained, received or transmitted by Customer or Users through or using the Services.
(d)"Fees" means Initial Fees, Monthly Fees, Termination Fees, and the fees to be paid by Customer for Additional Services.
(e)"Initial Fees" means the fees and expenses payable by Customer to EMC for initial set-up and installation services as indicated on the Cover Page.
(f)"Monthly Fees" means monthly fees and expenses payable by Customer to EMC for the Services as indicated on the Cover Page.
(g) "Primary Services" means the services to be provided by EMC to Customer as indicated on the Cover Page and described in the applicable Schedules.
(h) "Services" means Primary Services, technical support and additional services.
(i) "Term" has the meaning specified in paragraph 11.1.
(j) "Users" means an individual employee or representative of Customer who uses the Services for Customer's business purposes.
2.INTERPRETATION. The headings in this Agreement are for reference only and do not impact the meaning of this Agreement or any of its provisions.
3.1Primary Services. EMC will provide Customer the Primary Services indicated on the Cover Page and as described in the applicable Schedules.
3.2Technical Support. EMC will use commercially reasonable efforts to make available and provide technical support to Customer. EMC will provide technical support only to Customer's Mail Administrator, as defined in Section 5.3. Initial requests for technical support may be made by telephone, facsimile or email using the Technical Support contact information indicated from time to time on EMC's website www.electricmail.com. Technical support is subject to the limitation that not all technical problems can or will be corrected or resolved. Technical support is generally provided for no additional fee or charge, except if EMC determines that the technical problem is not caused by EMC's software or systems.
4.1Fees and Taxes. As payment for the Services, Customer will pay the Fees to EMC. Fees are exclusive of taxes, which are the sole responsibility of Customer. Taxes include but are not limited to federal, state, provincial, municipal or any other governmental tax, fee or assessment. Following the Initial Term or the then current Renewal Term, as the case may be, EMC reserves its right to increase Fees in its absolute sole discretion upon fifteen (15) days prior notice to Customer.
4.2Accounts. For the purpose of calculating Fees for a Service during a billing period, the number of Accounts will be the total of: (a) the number of Customer Accounts provided during the billing period; and (b) any additional Accounts that during the previous billing period (i) received two or more inbound messages using the Service or (ii) transmitted one or more outbound messages using the Service.
4.3Invoices and Payment. EMC will invoice Customer for all Fees. Invoices may be delivered to Customer by email to the Customer Representative's email address, and are due and payable immediately upon receipt by Customer.
4.4Interest. Payment will be overdue if not paid within ten (10) days of the date of the applicable invoice. Overdue payments will be subject to interest of one and one-half percent (1½%) for each month (18% per annum) or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law. Customer will reimburse EMC for all costs incurred in collecting overdue payments, including all of EMC's legal fees, disbursements and expenses.
5.1Equipment and Services. Customer is solely responsible for obtaining, provisioning, configuring, maintaining and paying for all equipment (including without limitation computer hardware, software and telephone lines) and services necessary for Customer and Users to access and use the Services.
5.2Customer Representative. Customer will designate from time to time an individual (the "Customer Representative") who will act as its primary contact regarding the performance of this Agreement. The current Customer Representative is identified on the Cover Page. Customer may change the Customer Representative from time to time upon written notice to EMC.
5.3Customer's Email Administrator. Customer will designate one (1) User as its mail administrator (the "Mail Administrator") who is responsible for Customer's technical installation and use of the Services and is authorized by Customer to request and receive from EMC technical support regarding Services. Customer may change the Mail Administrator from time to time upon written notice to EMC. Customer will ensure that the Mail Administrator has suitable qualifications and expertise regarding computer software and electronic mail systems.
5.4Permitted Users. Customer will restrict access to and use of the Services to its Users. Customer may not assign, sublicense or re-sell access to or use of the Services or any portion thereof.
5.5Acceptable Use. Customer is solely responsible and liable for Customer's and Users' use of the Services and any and all acts and omissions by Customer and Users. Customer will ensure that all use of the Services by Customer and Users complies with all applicable laws, this Agreement and the Acceptable Use Policy, and does not infringe third party rights.
5.6Security and Passwords. Customer and its Users are required to use a user name and password. User names and passwords may not be shared with other persons. Customer is solely responsible for all Users' use and misuse of user names and passwords. Customer must immediately notify EMC if Customer discovers or suspects any unauthorized use of the Services or that any of its Users' user names or passwords have been lost or stolen or become known to any unauthorized person. EMC is not obligated to verify the actual identity or authority of the user of a user name or password. If EMC, in its absolute discretion, considers a password to be insecure or to have been used inappropriately, then EMC may immediately cancel the password without notice.
5.7Content and Export Laws. Customer is solely responsible and liable for the content of communications sent or received by Customer and Users using the Services. Customer will comply with and ensure that its Users comply with all applicable Canadian and U.S. export laws concerning the transmission of technical data and other regulated materials using the Services.
5.8Customer Information and Assistance. Customer will promptly provide to EMC all information requested by EMC regarding performance of the Services or to verify the number of Accounts. Customer will reasonably assist EMC to provide the Services and will perform such tasks as EMC may reasonably request, such as recording error information and installing software updates.
6.1Definition. "Confidential Information" means all non-public information, in any form and on any medium, disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party") under this Agreement, regardless of the form of disclosure, and includes without limitation and without the need to designate as confidential: (1) Customer Data (which is Customer's Confidential Information); and (2) EMC's computer software, technologies, and related documents and information (which is EMC's Confidential Information); BUT DOES NOT INCLUDE any information to the extent, but only to the extent, that such information is: (3) already known to or in the possession of the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (4) subsequently learned by the Receiving Party from a third party and without breach of this Agreement or any agreement with such third party; (5) becomes publicly available through no wrongful act of the Receiving Party; or (6) independently developed by the Receiving Party without reference to any Confidential Information.
6.2Duty to Protect; Permitted Disclosures. The Confidential Information will only be used by a party for the purposes of carrying out the obligations of, or as otherwise contemplated by this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential Information to the extent such disclosure is required by a valid order of a court, tribunal or governmental body or institution of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the Receiving Party gives reasonable notice to the Disclosing Party of the potential disclosure and reasonably assists the Disclosing Party in seeking a protective order preventing or limiting the potential disclosure or use of the Confidential Information. EMC may disclose Customer Data and personally identifiable information regarding Customer and Users to a governmental body or institution if EMC has reasonable grounds to believe the information could be useful in the investigation of unlawful activity.
6.3Return and Destruction of Confidential Information. Upon termination of this Agreement or at any time upon request by the Disclosing Party, the Receiving Party will promptly deliver to the Disclosing Party all originals and copies of the Disclosing Party's Confidential Information and delete all the Disclosing Party's Confidential Information from any and all of the Receiving Party's sources, or systems.
6.4Monitoring Service Use; Disclosure of Aggregated Data. Notwithstanding any other provision of this Agreement, EMC may in its absolute discretion: (a) monitor the use of the Services by Customer and Users without any further notice or any liability to Customer or any other person; and (b) disclose to other persons aggregated, non-identifiable information regarding the use of the Services by Customer and Users.
7.1EMC Ownership. As between the Parties, EMC owns and retains all right, title and interest (including without limitation all copyrights, patents, moral rights, trademark rights and other intellectual property and industrial property rights) in, to and associated with the Services and all software and technology used to provide the Services and related documents and information. Customer and Users will not acquire any right, title or interest in or to any software or technology provided by EMC for use by Customer or Users as part of the Services.
7.2Customer Ownership. As between the Parties, Customer owns and retains all right, title and interest in, to and associated with Customer Data, except that Customer grants to EMC a non-exclusive, royalty free, non-transferable license during the Term to access, copy, and otherwise use Customer Data for the purpose of providing the Services and fulfilling its obligations under this Agreement. Customer is solely responsible for, and bears all risks and liabilities associated with, all Customer Data.
8.REPRESENTATIONS, DISCLAIMERS AND REMEDY
8.1Mutual Representations and Warranties. Each Party represents and warrants that it has all requisite power, authority and approvals to enter into, execute and deliver this Agreement and to perform fully its obligations under this Agreement, and its entering into this Agreement and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that it now or in the future owes to any other person.
8.2NO OTHER WARRANTIES. except for the express representations and warranties set forth in paragraph 8.1, the services are provided on an "as is" and "as available" basis, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including, without limitation, any warrantiy of fitness for a particular purpose, lack of negligence, or merchantability, all of which are hereby disclaimed by EMC to the fullest extent permitted by law. without limiting the generality of the foregoing, EMC does not represent, warrant, or guarantee that the services will meet customer's or any user's needs or be free from errors or that the services will be uninterrupted.
8.3GENERAL DISCLAIMER. use of the services is at customer's and users' own risk. the services may be affected by numerous factors beyond EMC's control, and may not be continuous or uninterrupted or secure. security and privacy risks cannot be eliminated. password protection may not prevent unauthorized access to customer data or other information customer or users may use in connection with the services. customer will remain solely and exclusively responsible for customer's and users' use of the services and the control, security and confidentiality of customer data. customer hereby acknowledges that the internet is not a secure medium, may be inherently unreliable and subject to interruption or disruption, and may be subject to inadvertent or deliberate breaches of security.
8.4NO RESPONSIBILITY FOR THIRD PARTY CLAIMS. customer is solely liable and responsible for any and all Claims and Proceedings directly or indirectly arising from, connected with or relating to the use of the services by customer, users, or anyone using customer's or users' user name or password, customer's breach of this agreement, customer's violation or infringement of the rights of other persons, users' violation of the acceptable use policy, or customer's or users' violation of any applicable civil or criminal law. EMC disclaims any and all responsibility and liability regarding all such matters to the fullest extent permitted by law.
8.5NO RESPONSIBILITY FOR UNAUTHORIZED ACCESS OR DAMAGE. EMC is not obligated to verify the identity of users. Nor is EMC responsible or liable for unauthorized access to or alteration, theft or destruction of customer data through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of EMC's negligence. EMC will not be liable for any damages, including but not limited to loss of data, loss of revenue or profits or for any other special, incidental, punitive, indirect or consequential damages, arising out of or in connection with the use of or inability to use the services.
9.LIMITATION OF LIABILITY
9.1LIMITATION OF LIABILITY. notwithstanding any other provisions of this agreement to the contrary, and regardless of the form of claim, including but not limited to whether in contract or in tort or whether from breach of this agreement, irrespective of whether emc has been advised or should be aware of the possibility of such damage, in no event will the measure of damages recoverable by customer against emc for any act or ommission of emc, include any amounts for indirect, incidental, consequential, exemplary or punitive damages of any person or for loss of actual or anticipated profits lost savings or other economic loss of any person or for damages that could have been avoided, using reasonable diligence, by emc, and in no event shall customer recover damages against emc for neglignce. customer further agrees that, under no circumstances will EMC's liability to customer or any other person exceed the greater of (7) $500 cdn; or (8) the monthly fees paid or payable by customer to EMC for the month during which the liability arose. in this paragraph, "EMC" includes EMC and its affiliates and their respective directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns and related persons.
9.2FAIR ALLOCATION OF LIABILITY. this agreement represents a fair allocation of risk and liability, which is reflected in the fees to be paid by customer.
10.1EMC Indemnity. EMC will defend, indemnify, and save and hold Customer and its past, present and future directors, officers, employees, agents, representatives, successors, permitted assigns, related persons and each of them (collectively, the "Customer's Indemnified Representatives") harmless from and against any and all claims and proceedings directly or indirectly arising from, connected with or relating to any proven or unproven allegation that the Services or any part thereof, when used by Customer and Users in accordance with this Agreement, infringe or violate any intellectual, industrial or proprietary rights of a third party, excluding any such actual or alleged infringement or violation resulting from: (9) the combination of any Services with software, products or services not supplied by EMC; or (10) any breach by EMC of its obligations under this Agreement.
10.2Customer Indemnity. Customer will indemnify, defend and hold harmless EMC and its past, present and future directors, officers, employees, agents, subcontractors, representatives, successors, permitted assigns, related persons and each of them (collectively, the "EMC's Indemnified Representatives") from and against any and all claims and proceedings directly or indirectly arising from, connected with or relating to: (11) use of the Services by Customer or Users; (12) any negligence, misconduct, breach of this Agreement or violation of the Acceptable Use Policy by Customer, Users, or other any person for whom Customer is under this Agreement or in law responsible; (13) the suspension of Services; or (14) the termination of this Agreement.
10.3Indemnity Procedure. The Indemnifying Party's obligations are conditional upon the Indemnified Party and its Indemnified Representatives (if applicable): (15) giving the Indemnifying Party prompt notice of the claim or proceeding; (16) granting control of the defence and settlement of the claim or proceeding to the Indemnifying Party (provided that a claim and/or proceeding will not be settled without the prior written consent of the Indemnified Party and its Indemnified Representatives (if applicable), which consent will not be unreasonably withheld or delayed); and (17) reasonably co-operating with the Indemnifying Party regarding the defence and settlement of the claim and/or proceeding at the Indemnified Party's expense. Notwithstanding anything contained in this Agreement to the contrary, the Indemnified Party and its Indemnified Representatives (if applicable) retain the right to participate in the defense of and settlement negotiations relating to any claim or proceeding with counsel of its own selection at its sole cost and expense.
11.TERM, TERMINATION AND SUSPENSION
11.1Term. The initial term of this Agreement (the "Initial Term") will be for the period of one (1) year commencing on the Effective Date, unless terminated earlier by either Party pursuant to this Agreement. This Agreement will automatically renew for additional one-year periods (each a "Renewal Term") unless either Party gives notice of non-renewal to the other Party by no later than sixty (60) days before the end of the Initial Term or the then-current Renewal Term. For purposes of this Agreement, the Initial Term and each Renewal Term are referred to collectively as the "Term".
11.2Termination for Cause. Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party if a Party materially breaches this Agreement and has not remedied the breach within thirty (30) days after receipt of a notice (the "Default Notice") from the non-breaching Party identifying the breach and stating the non-breaching Party's intention to terminate this Agreement if the breach is not remedied within thirty (30) days (the "Cure Period"), provided that such termination notice must be delivered no later than thirty (30) days after the end of the Cure Period. If the other Party does not give notice of termination to the breaching Party within that further 30 day period, and if the breach continues after the end of the Cure Period, the other Party may give a further Default Notice in respect of the breach, in which case the provisions of this paragraph 11.2 shall apply in respect of that further Default Notice.
11.3Suspension of Services or Termination by EMC. EMC may in its sole absolute discretion either suspend its provision of Services or terminate this Agreement for cause immediately upon delivery of notice to Customer if: (a) Customer becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent or takes any step or proceeding for its liquidation, dissolution or winding up; (b) Customer violates the Acceptance Use Policy; or (c) Customer fails to pay any Fee when due.
11.4Effect of Expiration or Termination. Immediately upon expiration or termination of this Agreement, Customer and all Users will cease using the Services and Customer will pay EMC all Fees accrued up to the date of termination without any right of deduction or setoff. Upon expiration or termination of this Agreement, EMC will co-operate with and provide reasonable assistance to Customer in transferring Customer Data currently stored in EMC's systems to Customer or a different service provider, provided Customer pays all outstanding Fees and pays in advance EMC's fees for all such services based upon EMC's then-current fee schedule.
11.5Survival. Notwithstanding anything herein to the contrary, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: sections 4, 6, 6, 8, 9, 10, and 12 and paragraphs 11.4, 11.5.
12.1Force Majeure. Notwithstanding any other provision of this Agreement, EMC will not be liable to Customer or any other person for any delay in performing or failure to perform any of its obligations hereunder if performance is delayed or prevented due to any cause or causes that are beyond EMC's reasonable control, including without limitation: (18) acts of God, such as fire, lightning, storm, flood, earthquake or natural disaster; (19) war, terrorism, riot, civil unrest, commotion or acts of a public enemy; (20) labor shortages, strikes, lock-outs or other labor, industrial or trade action disputes, disruption or disturbances; (21) theft, sabotage, malicious damage, fraud, epidemic or quarantine restrictions; (22) material shortages; (23) general failure, malfunction or unavailability of power, utilities, telecommunications, data communications or related services; (24) action, demand, order, restraint, restriction, requirement, or prevention by any government or court; or (25) applicable law or regulation. Any delay or failure of this kind will not be deemed to be a breach of this Agreement by EMC, and the time for EMC's performance of the affected obligation will be extended by a period that is reasonable under the circumstances.
12.2Relationship of Parties. The Parties are independent contractors, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the parties.
12.3Assignment. Customer may not, by operation of law or otherwise, assign, transfer, delegate, sub-license or grant all or any part of this Agreement or its rights or obligations under this Agreement to any other person without EMC's prior written consent, which consent may be withheld by EMC in its absolute discretion. Any purported transfer in violation of the prohibitions in this paragraph 12.3 will be null and void.
12.4No Third Party Beneficiaries. Nothing herein shall be construed to confer upon or give to any person other than Customer and EMC, and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement. Without limiting the generality of the foregoing, Users will not have any rights hereunder.
12.5Lawyers' Fees. In addition to any other relief awarded in any court proceedings arising out of or relating to this Agreement, the prevailing Party will be entitled to its reasonable lawyers' fees, disbursements and expenses.
12.6Notices. Except for electronic notices pursuant to paragraph 5.5 and invoices pursuant to paragraph 4.3, any notice required or permitted to be given under this Agreement will be in writing and will be delivered by personal delivery, by overnight or express courier, or by facsimile transmission to EMC at its head office address indicated from time to time on its website and to Customer at the address and facsimile indicated on the Cover Page, or at such other addresses and facsimile numbers as a Party may from time to time designate in a notice to the other Party. A notice delivered personally, by courier or facsimile will be deemed to have been received on the next business day following, as applicable, the date of delivery or the fax transmission (with confirming receipt), as applicable.
12.7No Waiver. No consent or waiver by a Party to or of any breach or default by the other Party in its performance of its obligations hereunder will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that Party. No consent or waiver will be effective unless in writing and signed by both Parties.
12.8Remedies. Except as specifically provided herein, the specific rights and remedies of a Party hereunder are cumulative and not exclusive of any other rights or remedies to which such Party may be entitled under this Agreement or at law or equity, and the Parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
12.9Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. It is the intention of the Parties that this Agreement would have been executed without reference to any provisions that may, for any reason, be held to be invalid or unenforceable.
12.10Governing Law and Venue. The construction, interpretation and performance of this Agreement and all transactions hereunder shall be governed by the internal laws of the State of California, USA. Venue for any permitted action arising out of or related to this Agreement or the conduct of the parties hereunder shall only be Los Angeles County, California. The parties hereby waive any objection to venue in Los Angeles County, California.
12.11Dispute Resolution. For any dispute between the Parties arising from, connected with or relating to this Agreement wherein the amount of claimed damages is less than fifty thousand dollars ($50,000), the parties agree to submit such controversy to binding arbitration in Los Angeles by a single arbitrator pursuant to the Commercial Arbitration rules of the American Arbitration Association. Discovery shall be controlled by the arbitrator and shall be governed by the Federal Rules of Civil Procedure. Each party shall bear its own fees, costs and expenses of arbitration, including, but not limited to, its own legal and expert witness fees. The Parties will equally split the fees for the arbitration and the arbitrator. The arbitrator may award reimbursement of costs and/or fees to the prevailing party. Any award rendered by the arbitrator will be final, conclusive and binding upon the parties, and any judgment thereon may be entered and enforced in any court of competent jurisdiction.
12.12Counterparts and Execution by Fax. This Agreement may be executed and delivered in one or more counterparts, which may be executed and delivered by facsimile transmission, and each counterpart when so executed and delivered will be deemed an original, and all such counterparts will together constitute one and the same document.
12.13Complete Agreement. This Agreement, comprised of the Cover Page and the Schedules referenced by the Cover Page, sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement. This Agreement may be modified only by a written instrument signed by both Parties or their successors or permitted assigns.