This Service Agreement ("Agreement") is entered into as of the Effective Date (as defined below) by and between AssistAlong, Inc. ("AssistAlong") and the merchant listed in the applicable order form executed between the parties (such merchant, "Merchant" and such order form, an "Order"). This Agreement governs Merchant's access and use of the Services (as defined below). This Agreement is effective as of the date Merchant indicates acceptance (e.g., via click-through or other electronic means) of the applicable Order (the "Effective Date").
1.1 General. AssistAlong provides a web-based platform and related application programming interfaces ("APIs") that (a) record and analyze the purchase history of End Customers, (b) remind End Customers about their orders of Merchant products (such platform and APIs, together with applicable documentation and support pages, collectively, the “Services”). Merchant may obtain the Services pursuant to Orders. Each Order will outline (a) the Services selected by Merchant, (b) the period the Services will be accessible and provided (each, a “Term”), (c) the Transaction Fees and Subscription Fees (each as defined below), and (d) other terms deemed necessary or applicable by the parties. Subject to the terms and conditions of this Agreement, AssistAlong hereby grants to Merchant a limited, nonexclusive, nontransferable license to internally access and use the Services.
1.2 Maintenance. AssistAlong may conduct maintenance on the Services from time to time without prior notice to Merchant.
1.3 Merchant Materials. Merchant will timely provide all data, content, and other materials to AssistAlong as reasonably necessary for, or otherwise in connection with, AssistAlong’s provision of the Services (the “Merchant Materials”). Merchant hereby grants to AssistAlong the right to access, reproduce, distribute, process, publish, display, perform, adapt, modify, analyze, and otherwise use and exploit the Merchant Materials to provide, maintain, and improve the Services. Merchant acknowledges that (a) AssistAlong is relying on Merchant’s timely, complete, and accurate provision of Merchant Materials to AssistAlong for AssistAlong’s performance of the Services and (b) AssistAlong will not be responsible or liable for failures or delays to perform the Services to the extent resulting from (i) Merchant’s delay or failure to provide the Merchant Materials in a timely manner or (ii) the inaccuracy or incompleteness of the Merchant Materials. As between the parties and subject to the express grants within this Agreement, Merchant owns all right, title, and interest in and to the Merchant Materials, and any and all Intellectual Property Rights embodied in such Merchant Materials.
1.4 Passwords. Merchant is responsible for maintaining the confidentiality of its passwords, IDs, and other credentials and login information on the Services (collectively, “Passwords”), and Merchant agrees that AssistAlong has no liability with respect to the use of any Passwords. Merchant will notify AssistAlong immediately if Merchant has reason to believe that the security of Merchant’s account has been compromised or if any of the Services have been accessed by any unauthorized individuals.
2.2 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Merchant will be responsible for and will pay all sales and similar taxes and all license fees and similar fees levied upon the provision of the Services excluding only taxes based solely on AssistAlong’s net income. Notwithstanding any terms to the contrary in this Agreement, (a) AssistAlong will not be obligated to issue any refunds for Fees paid, and (b) AssistAlong, at its sole discretion, may modify the Fees during any Term provided that modifications will only be effective as of the directly subsequent Term.
2.3 Suspension. If any Fees under this Agreement are 30 days or more overdue, AssistAlong may, without limiting its other rights or remedies, (a) suspend all Services until such Fees are paid in full or (b) immediately terminate this Agreement without any further cure period and accelerate Merchant’s unpaid Fee obligations such that all such obligations become immediately due and payable upon termination.
3.1 Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) (or all information (whether in oral, written, or other tangible or intangible form) acquired by the Receiving Party), concerning or related to this Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party (or acquisition of the information by the Receiving Party), is proprietary information of the Disclosing Party. Confidential Information of AssistAlong includes, but is not limited to, the Services.
3.2 Obligations. The Receiving Party will maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 3.2. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party, provided that each party may disclose the terms and conditions of this Agreement (a) to such party’s legal counsel, accountants, banks, financing sources, and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or other transaction. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Merchant to AssistAlong with respect to AssistAlong or the Services (collectively, “Feedback”) will constitute Confidential Information of AssistAlong. Further, AssistAlong will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights (as defined below) or otherwise.
3.3 Exceptions. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party, (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party, (c) the Receiving Party can demonstrate was developed by the Receiving Party independently of, and without use of or reference to, the Confidential Information, or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a “Court Order”), but solely on the conditions that the Receiving Party (i) gives the Disclosing Party written notice of the Court Order within 24 hours after receiving it, and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 3.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
3.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
4.1 AssistAlong Data. “AssistAlong Data” shall include data and information, including Personal Information, associated with an End Customer's AssistAlong account, created by End Customer's acceptance of the AssistAlong Terms of Service (“AssistAlong Account Data”), as well as data and Personal Information that End Customers independently provide to AssistAlong. For purposes of this Agreement, “Personal Information” means any information that can be used to identify, related to, describe, or associated with an individual, whether individually or in combination, or as otherwise defined under applicable law.
4.2 Merchant Data. “Merchant Data” means (i) the data and information input or uploaded into the AssistAlong Services by Merchant, (ii) the End Customer's personal and payment card information collected via the AssistAlong Services, (iii) an End Customer's Merchant-specific account and the data and information associated with such account, and (iv) Merchant Materials. Merchant is responsible for obtaining any necessary rights, consents, and licenses for the use of the Merchant Data by Merchant and AssistAlong as contemplated in this Agreement. Merchant agrees that it has the legal right and authority to access, use and disclose to AssistAlong any Merchant Data. Merchant authorizes AssistAlong to access, process, use and disclose the Merchant Data as necessary to perform and fulfill its obligations hereunder. Merchant acknowledges and agrees that, Client (not AssistAlong) has control over Merchant Data stored or processed by operation of the Services, including through Merchant’s deployment of the Services onto its e-commerce flow and direction to End Customers to make use of the Services.
4.3 Processing of Merchant Data. Merchant authorizes and instructs AssistAlong to use, access, view, store, copy, delete, or otherwise process any Merchant Data as part of AssistAlong’s performance of the Services under this Agreement. AssistAlong will process Merchant Data only for the performance of the Services and in accordance with the terms set forth in this Agreement. AssistAlong will not: (i) collect, retain, use, or disclose Merchant Personal Information for any purpose other than as necessary for the specific purpose of performing the Service as described in the Agreement, including use of the Merchant Personal Information for a commercial purpose other than providing the Service; and (ii) sell the Merchant Personal Information.
4.4 Security Measures. AssistAlong has established, and will maintain during the term of this Agreement, commercially reasonable administrative, physical, and technical safeguards to protect Merchant Data. Those safeguards will include measures for preventing unauthorized access to, use, or disclosure of Merchant Data.
Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding, and enforceable against it in accordance with its terms. Further, Merchant represents, warrants, and covenants that (i) it possesses all necessary rights and consents to grant AssistAlong the rights set forth in this Agreement with respect to all Merchant Data, (ii) it has collected all Merchant Data Merchantin accordance with all applicable laws, rules, and regulations, (iii) neither the Merchant Data nor AssistAlong’s use of the Merchant Data in accordance with this Agreement will (A) infringe, misappropriate, or otherwise violate any Intellectual Property Rights (as defined below) or other rights of any third party or (B) violate applicable laws, rules, or regulations, and (iv) Merchant will use the Services in accordance with all applicable laws, rules, and regulations.
EXCEPT AS SET FORTH IN SECTION 5, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FURTHER, ASSISTALONG DOES NOT REPRESENT OR WARRANT THAT (a) THE ACCESS TO OR USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (b) THE SERVICES WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS, (c) ANY STORED COMPANY MATERIALS OR OTHER DATA WILL BE ACCURATE OR RELIABLE, OR WILL NOT BE LOST, DAMAGED, OR CORRUPTED, (d) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR ASSISTALONG WILL DETECT ANY BUG IN THE SERVICES, (e) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (f) THIRD-PARTY DISRUPTIONS OR SECURITY BREACHES OF THE SERVICES WILL BE PREVENTED. WITHOUT LIMITING THE FOREGOING, COMPANY IS SOLELY RESPONSIBLE AND LIABLE FOR ALL COMPANY MATERIALS AND ASSISTALONG IS NOT RESPONSIBLE OR LIABLE FOR ANY COMPANY MATERIALS.
7.1 Indemnification by AssistAlong. AssistAlong, at its sole expense, will defend Merchant from and against any and all third-party claims, suits, actions, or proceedings (each a “Claim”), and indemnify Merchant from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, and disbursements) (“Losses”) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by AssistAlong resulting from the Services infringing any Intellectual Property Rights of any third party. AssistAlong’s defense obligations do not extend to Claims, nor do its indemnification obligations extend to Losses, resulting from, arising in connection with, or relating to (a) any negligent or willful misconduct of Merchant or any of Merchant’s employees, contractors, users, and/or service providers (collectively, the “Merchant Parties”) or any third party, (b) any combination of the Services (or any portion thereof) by any of the Merchant Parties or any third party in combination with any equipment, software, data, or any other materials not provided by AssistAlong, (c) any modification to the Services by any of the Merchant Parties or any third party, (d) the use of the Services by any of the Merchant Parties or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use, (e) the continued use of the Services after AssistAlong has provided substantially equivalent non-infringing software or services, (f) any Merchant Data, or any Merchant services or products, or (g) any act or omission of any of the Merchant Parties.
7.2 Indemnification by Merchant. Merchant, at its sole expense, will defend AssistAlong and its directors, officers, employees, and agents (“AssistAlong Indemnitees”) from and against any Claims and indemnify AssistAlong Indemnitees from any related Losses arising in connection with or relating to (a) any Merchant products or services, (b) any negligence or willful misconduct by Merchant or a party acting on its behalf, (c) any alleged or actual breach of Merchant’s obligations under this Agreement (including, but not limited to, any alleged or actual breach of any of Merchant’s representations or warranties and Merchant’s use of the Services in violation of applicable law), or (d) Merchant Data.
7.3 Infringement Claims. In the event of a Claim pursuant to Section 7.1, or if AssistAlong believes such a Claim may be brought, AssistAlong may, at AssistAlong’s option and at AssistAlong’s expense, (a) replace the applicable Services, (b) modify the applicable Services, (c) procure for Merchant the right to continue using the Services, or (d) terminate this Agreement upon 30 days written notice to Merchant.
7.4 Procedures. The indemnifying party’s indemnification obligations under this Section 7 are conditioned upon the indemnified party (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under this Section 7 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party), and (c) providing reasonable cooperation to the indemnifying party, and at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
8.1 Consequential Damages Waiver. IN NO EVENT WILL ASSISTALONG BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 Liability Cap. IN NO EVENT WILL ASSISTALONG BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.3 Failure of Essential Purpose and Additional Limitation. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 7 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.1 Term. This Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 9.2, continues for the Term.
9.2 Termination. Either party may terminate this Agreement, for cause, if the other party materially breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach. Further, notwithstanding any terms to the contrary in this Agreement, AssistAlong may suspend use of the Services (or any portion thereof) without liability if AssistAlong reasonably determines that (a) AssistAlong is required by any applicable law to suspend the Services or (b) Merchant is in material breach of this Agreement.
9.3 Effect of Termination or Expiration. Upon any termination or expiration of this Agreement (a) all rights granted to Merchant under this Agreement will immediately cease, (b) Merchant will immediately pay to AssistAlong all amounts due and payable up to the effective date of termination of this Agreement, and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, Sections 2, 3, 4, 6, 7, 9.3, 9, 10, ,11 12.2, 12.4, 12.6, 12.7, 12.8, 12.9, and 12.12 will survive any termination or expiration of this Agreement.
As between the parties and subject to the express grants within this Agreement, AssistAlong owns all right, title, and interest in and to the Services (and any and all modifications to or derivative works of the Services), the Usage Data (as defined below), the Feedback and any and all Intellectual Property Rights embodied in or related to the foregoing. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel, or otherwise, except as expressly set forth in this Agreement. For the purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing. Merchant acknowledges and agrees that AssistAlong may create, monitor, collect, use, and store analytic information, data and/or statistics regarding use of the Services (collectively, “Usage Data”).
Except as expressly authorized by this Agreement, Merchant may not (a) modify, disclose, alter, translate, or create derivative works of the Services (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Services (or any components thereof), (c) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile, or otherwise translate, create, or attempt to create the source code of the Services or their structural framework (in whole or in part), or perform any process intended to determine the source code for the Services, (d) use the Services to store or transmit any viruses, software routines, or other code designed to permit unauthorized access to disable, erase, or otherwise harm software, hardware or data, or to perform any other harmful actions, (e) copy, frame, or mirror any part or content of the Services, (f) build a competitive product or service, or copy any features or functions of the Services, (g) interfere with or disrupt the integrity or performance of the Services, (h) attempt to gain unauthorized access to the Services or their related systems or networks, (i) disclose to any third party any performance information or analysis relating to the Services, (j) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Services or the functionality of the Services, (k) take any action that imposes an unreasonable or disproportionately large load on the Services, (l) use the Services for any purpose that is illegal in any way or that advocates illegal activity, or (m) cause or permit any individual or entity to do any of the foregoing.
12.1 Entire Agreement. This Agreement is the entire agreement of the parties regarding the Services and it includes the Order, all exhibits attached to the body of this Agreement, and all of the other terms and conditions incorporated into this Agreement by reference. This Agreement supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to the Services and all past dealings or industry customs. In the event of a conflict between the terms and conditions of the body of this Agreement and the terms and conditions of any Order, the terms and conditions of the body of this Agreement will govern
12.2 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner, or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
12.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in San Francisco, California in any litigation arising out of or relating to this Agreement.
12.4 Publicity. Notwithstanding any terms to the contrary in this Agreement, Merchant consents to AssistAlong’s use of Merchant’s name and logo on the AssistAlong website and on AssistAlong’s promotional and marketing related materials, identifying Merchant as a customer of AssistAlong and describing Merchant’s use of the Services. Merchant will participate in a case study and related blog post with respect to its use of the Services, provided that such case study and blog post will not be published until AssistAlong has obtained Merchant’s approval (and such approval will not be unreasonably withheld).
12.5 Third-Party Services. Merchant acknowledges and agrees that AssistAlong uses third-party hosting infrastructures and/or other services in connection with the Services (“Third-Party Services”) and, notwithstanding any terms to the contrary in this Agreement, AssistAlong disclaims any liability with respect to the Third-Party Services. Merchant agrees to abide by the terms and conditions provided by AssistAlong with respect to the Third-Party Services.
12.6 Modifications. Notwithstanding any terms to the contrary in this Agreement, Merchant acknowledges and agrees that AssistAlong may modify features of the Services from time to time at AssistAlong’s sole discretion, provided that such modifications will not materially degrade the Services.
12.7 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned, or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment, or delegation without such consent will be void and without effect. Notwithstanding the foregoing, AssistAlong may freely assign this Agreement or any right or duty under this Agreement to an affiliate or to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or other transaction. This Agreement will be binding upon and enforceable against any successor or permitted assignee.
12.8 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
12.10 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, (a) such invalidity, illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and (b) such provision, in such jurisdiction, will be replaced by a valid, legal, and enforceable provision that best reflects the parties’ intent for such first provision.
12.11 Audit. AssistAlong may, by itself or through an independent third party, audit Merchant’s use of the Services to verify Merchant is in compliance with the terms and conditions of this Agreement. Merchant agrees to provide reasonable access to Merchant’s systems and records for purposes of conducting these audits.
12.12 Counterparts. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile, or email (if email, signatures in Adobe PDF or similar format).
12.13 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by AssistAlong, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.