Software End User License Agreement

IMPORTANT – THE DOWNLOAD AND USE OF THIS SOFTWARE IS SUBJECT TO THE SOFTWARE END USER LICENSE AGREEMENT OF SPECTRUM UNLIMITED, LLC, AND OTHER LICENSORS WHOSE SOFTWARE MAY BE BUNDLED WITH THIS PRODUCT. BY YOUR USE OR DOWNLOADING OF THE SOFTWARE YOU ACCEPT AND AGREE TO THIS SOFTWARE END USER LICENSE AGREEMENT AND THE TERMS HEREIN. IF YOU DO NOT AGREE TO THE LICENSE TERMS APPLICABLE TO THE SOFTWARE, DO NOT DOWNLOAD OR USE THE SOFTWARE.

This Software End User License Agreement ("Agreement") between Spectrum Unlimited, LLC ("Spectrum"), and you, or the organization and/or individual downloading or using the Software, ("Customer"), is effective upon the earlier of: (i) the date Customer uses or downloads the Software, (ii) acceptance of this Agreement, and (iii) the date the Software is first made available to Customer. Customer's use, and Spectrum's provision, of the Software is governed by the terms and conditions of this Agreement. For the purposes of this Agreement "Software" shall mean the applicable Spectrum desktop software, or other application, purchased by Customer on the website www.clientbirthday.com.

1. LICENSE AND USE

1.1. In consideration of Spectrum's receipt of the applicable fees, Spectrum hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable, revocable, right and license to install and use the Software solely for internal personal use (the "Permitted Use") on a single computer system, which is not intended for use by more than three (3) authorized users. Customer may make one copy of the Software in machine readable form solely for back-up purposes, provided you reproduce Spectrum Unlimited, LLC copyright proprietary legends on such backup copy.

1.2. Notwithstanding the foregoing, the single licensed user (the "Primary User") may install and use the Software on up to three (3) of their own personal devices (e.g., home computer, laptop, or other secondary computer. This license is granted solely for the benefit of one (1) individual Primary User and may not be used for the benefit of any other person. Other individuals ("Auxiliary Users") may interact with or operate the Software only in an incidental and supportive capacity on behalf of, and at the direction of, the Primary User, and shall not use the Software as a primary user or for their own independent benefit. Under no circumstances shall this license be construed to permit use of the Software by more than one (1) Primary User. As used in this license, the Software is "in use" when it is either loaded into RAM or installed on a hard disk or other permanent memory device. The Software may be "in use" on only one (1) device at any given time, and additional license terms and fees are applicable for networked or multiple user applications.

2. RESTRICTIONS

2.1. All rights to Software not expressly granted under this Agreement are hereby reserved to Spectrum, and no rights are granted by implication or otherwise. Without limiting the generality of the foregoing, Customer shall not (and Customer shall also ensure that any third party shall not):

  1. 2.1.1. modify, create derivative works from, distribute, publicly display, publicly perform, resell, or sublicense any Software, including without limitation through any loan, encumbrance, or lease;

  2. 2.1.2. distribute copies of the Software to others or electronically transfer the Software from one computer to another over a network or post or otherwise make available the Software, or any portion thereof, in any form, on the Internet;

  3. 2.1.3. use the Software for any purpose other than as provided in this Agreement;

  4. 2.1.4. use or sell the materials and outputs for commercial use;

  5. 2.1.5. attempt in any way to: a) tamper with the underlying code of the Software or b) reverse engineer, decompile, decrypt, disassemble, or otherwise reduce the Software to human-readable form;

  6. 2.1.6. remove any proprietary notices, labels, or marks on or in any copy or version of the Software or related documentation;

  7. 2.1.7. use the Software in a computer service business, including in time-sharing applications;

  8. 2.1.8. claim any rights in the Software other than its right to use the Software;

  9. 2.1.9. export or use the Software for any illegal activity, in violation of US or other applicable laws and regulations, or that may damage or hamper the reputation and/or goodwill of Spectrum;

  10. 2.1.10. intentionally interfere or disrupt Spectrum servers or networks, or disobey any network access or security requirements, policies, procedures or regulations of Spectrum;

  11. 2.1.11. create programs competing with, materially similar or identical to the Software based on the use or reference to Spectrum's Confidential Information disclosed under this Agreement; or

  12. 2.1.12. use the Software to gain unauthorized access to computer systems or devices.

2.2. Documentation. Customer may access and use any documents, help files, and other textual matter, in any form or media, that are included with the Software and describe its specifications, functionality, and limitations ("Documentation") solely in connection with the Permitted Use and to support use of the Software as expressly authorized in this Agreement.

3. CUSTOMER OBLIGATIONS

3.1. Customer is responsible for obtaining Internet access or other services necessary to use the Software. Spectrum shall have no responsibility for any Customer-procured third-party software or hardware nor for any errors caused thereby.

3.2. Customer is responsible for the downloading and implementation of the Software on its own device. Customer is solely responsible for ensuring that its operating systems, hardware, and any third-party integrations remain compatible with the Software and for maintaining such compatibility throughout the Term of this Agreement.

3.3. Customer will use reasonable measures to prevent unauthorized access to or use of the Software and notify Spectrum promptly upon Customer becoming aware of any such unauthorized access or use.

3.4. Customer agrees to use the Software in compliance with all Documentation, applicable laws, including copyright laws, and that Customer represents and warrants that they shall not copy, transmit, perform or distribute any audio or other content using the Software without obtaining all necessary licenses or permissions from the owner of the content.

3.5. Customer is solely responsible and liable for (1) preserving the secrecy of its usernames and passwords, and (2) any and all activity that occurs under Customer's account.

3.6. Customer is only permitted to use of the software databases to display and or print the database content for personal use, and may include using the database content in a printed format, accompanied by Spectrum Unlimited, LLC copyright symbol, to persons the Customer determines appropriate for said content, and all data derived therefrom must be maintained in confidence in accordance with the provisions of this Agreement. This license does not grant you any rights to distribute or disclose such database or data.

4. INTELLECTUAL PROPERTY

4.1. Ownership. The Software offered pursuant to this Agreement, and all copies thereof, are licensed (or otherwise made available and accessible as the case may be), not sold, and Customer receives no title to or ownership of the Software itself or any copies thereof. Spectrum retains exclusive ownership of the Software, including any media on which they are provided to Customer. Customer receives no intellectual property license: (a) to any Software or Documentation; or (b) to any other Software. Customer shall not (i) make any assertion contrary to the preceding sentence, (ii) jeopardize Spectrum's proprietary rights in the Software, or (iii) attempt to acquire any rights to the Software, other than the limited rights which are expressly provided by Spectrum in this Agreement. Customer hereby acknowledges that the Software and Documentation are works copyrighted under United States federal copyright law and protected by other intellectual property rights and embody valuable confidential and secret information of Spectrum and its third-party licensors. Spectrum shall own all rights in any copy, translation, modification, adaptation, or derivation of the Software or Spectrum's Confidential Information, including any improvement or development thereof, and Customer shall, and hereby agrees to, execute such assignment documents as Spectrum reasonably requests to perfect, confirm, or transfer all such ownership rights. Notwithstanding anything to the contrary in this Agreement, all outputs, information, materials, and content generated by or through the Software, whether in whole or in part, and whether or not derived from any input or data provided by Customer (collectively, "Generated Content"), are and shall remain the sole and exclusive property of Spectrum. Customer does not and shall not acquire any ownership interest, intellectual property right, or other proprietary right in or to any Generated Content by virtue of this Agreement or Customer's use of the Software. Subject to Customer's compliance with the terms and conditions of this Agreement, Spectrum hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Generated Content solely for the Permitted Use. Any use of Generated Content beyond the scope of such limited license is strictly prohibited and shall constitute a material breach of this Agreement.

5. FEES AND PAYMENTS

5.1. Fees. Customer shall pay all fees associated with the Software, in accordance with Spectrum's then current prices or rates. Spectrum reserves the right to increase the fees for any upgrades or new versions in their sole discretion at any time.

5.2. Refunds. PAYMENT OBLIGATIONS ARE NON-CANCELABLE, AND FEES PAID ARE NON-REFUNDABLE AND THERE ARE NO CREDITS FOR ERRORS, DOWNTIME, OR FAILURE OF THE SOFTWARE. NOTWITHSTANDING THE FOREGOING, IF CUSTOMER IS NOT SATISFIED WITH THE SOFTWARE FOR ANY REASON, CUSTOMER MAY REQUEST A FULL REFUND WITHIN NINETY (90) DAYS OF THE DATE OF PURCHASE, PROVIDED THAT CUSTOMER SUBMITS TO SPECTRUM A WRITTEN CERTIFICATION THAT CUSTOMER HAS DESTROYED ALL COPIES OF THE SOFTWARE AND ANY RELATED DOCUMENTATION IN CUSTOMER'S POSSESSION OR CONTROL, IN ACCORDANCE WITH SECTION 6.3 OF THIS AGREEMENT.

5.3. Third Party Payment Processor. Customers agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of using the Software with Stripe, Customer agrees to provide accurate and complete information about Customer and Customer's business, and Customer authorizes Spectrum to share it and transaction information related to the use of the payment processing services provided by Stripe. Customer also authorize Spectrum to pass on information provided by Customer to Stripe so that Stripe may use it to protect the integrity of Customer's account.

5.4. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR CUSTOMER'S ACCOUNT. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS, IF APPLICABLE, OR ON CUSTOMER'S STRIPE ACCOUNT SETTINGS. SPECTRUM EXPRESSLY DISCLAIM ANY LIABILITY FOR ANY DAMAGE THAT MAY RESULT SHOULD ANY INFORMATION BE RELEASED TO ANY THIRD PARTIES OR BY ANY THIRD PARTY PAYMENT PROCESSOR, AND CUSTOMER AGREES TO HOLD SPECTRUM HARMLESS FOR ANY DAMAGES THAT MAY RESULT THEREFROM.

6. TERM; TERMINATION.

6.1. Term. This Agreement is effective on the Effective Date and terminates upon the earlier of: (i) either party terminates in accordance with this Agreement, and (ii) any technical incompatibilities, including if the Software is no longer compatible with an external operating system, software, or other tool (the "Term").

6.2. Termination. Customer may terminate this Agreement at any time with or without cause upon prior written notice to Spectrum. Spectrum may terminate this Agreement, or Customer's access to any Software, effective immediately upon written notice to Customer, if: (i) Customer breaches this Agreement, or (ii) Customer's use of the Software interferes with, disrupts, or degrades the performance of Spectrum's systems, platforms, servers, networks, or other customers' use of Spectrum's products or services. Notwithstanding the foregoing, Spectrum may immediately suspend Customer's access to the Software without prior notice if Spectrum reasonably determines that Customer's actions pose an immediate threat to the security, integrity, or availability of Spectrum's systems or platforms, or to other customers, provided that Spectrum shall provide notice to Customer as soon as reasonably practicable following such suspension.

6.3. Effects of Termination. Upon termination of this Agreement, Customer shall immediately cease all use of all Software which is subject to such termination, and all copies or modifications in any form, and any related Documentation, and all copies or modifications in any form, and, within five (5) days of the effective date of such termination, return to Spectrum all such Software, or if Spectrum so requests, destroy the same and certify the manner, date, and time of destruction in writing. All Documentation data, information, and other materials provided to, or created for, Customer shall no longer be accessible by Customer and may be deleted in its entirety by Spectrum immediately as of the effective date of termination.

7. REPRESENTATIONS AND WARRANTIES

7.1. Representations and Warranties.

  1. 7.1.1. Spectrum represents and warrants that the Software and shall materially conform to any Documentation. To submit a warranty claim under this Section, Customer shall submit a support request to resolve the non-conformity. If the non-conformity persists without relief more than thirty (30) days after written notice of a warranty claim provided to Spectrum under this Section, then Customer may terminate the affected Software. THIS SECTION SETS FORTH CUSTOMER'S EXCLUSIVE RIGHTS AND REMEDIES (AND SPECTRUM'S SOLE LIABILITY) IN CONNECTION WITH THIS WARRANTY.

  2. 7.1.2. Customer represents, warrants, and covenants that it has obtained and will maintain all rights, licenses, authorizations, permissions, notices, and consents necessary to provide, submit, upload, input, transmit, store, process, and otherwise make available to Spectrum and the Software any information, data, content, records, materials, or other items provided by or on behalf of Customer or any Authorized User in connection with the Software. Customer further represents, warrants, and covenants that it has obtained and will maintain all rights, licenses, authorizations, permissions, notices, and consents necessary to connect, access, use, and integrate with the Software any third-party software, platform, service, system, database, or application that Customer enables, designates, or uses in connection with the Software. Customer is solely responsible for the accuracy, quality, legality, and means by which it acquired all such information, data, content, materials, and integrated third-party systems, and for ensuring that the Software's receipt, access, use, processing, storage, transmission, and other handling of the foregoing as contemplated by this Agreement will not infringe, misappropriate, or otherwise violate any intellectual property, privacy, publicity, confidentiality, or other rights of any third party, and will not violate any applicable law, regulation, or binding agreement.

7.2. Disclaimer. SPECTRUM HEREBY EXPRESSLY AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, SPECTRUM DOES NOT WARRANT OR REPRESENT THAT: (a) THE OPERATION OF THE SOFTWARE WILL BE REASONABLY UNINTERRUPTED OR ERROR-FREE; (b) THAT THE SOFTWARE WILL OPERATE IN CONJUNCTION WITH ANY OTHER THIRD PARTY PLATFORM, THIRD PARTY INTEGRATION, PRODUCT OR SERVICE; OR (c) THAT THE SOFTWARE ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION. THE SOFTWARE IS PROVIDED "AS IS," AND SPECTRUM MAKES NO OTHER PROMISES, REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESSED OR IMPLIED, REGARDING THE SOFTWARE.

7.3. Email Integration. Email integration functionality in the Software relies on third-party verification and is not guaranteed to function indefinitely. Spectrum may discontinue any and all verification submissions at any time in its sole discretion, which may cause email integration to cease functioning in all versions of the Software, including previously purchased versions. SPECTRUM SHALL HAVE NO LIABILITY FOR ANY DISCONTINUATION OF EMAIL INTEGRATION OR OTHER THIRD-PARTY DEPENDENT FEATURES, AND CUSTOMER SHALL NOT BE ENTITLED TO ANY REFUND, CREDIT, OR OTHER REMEDY IF SUCH FEATURES CEASE TO FUNCTION.

8. INDEMNIFICATION

8.1. Spectrum. Spectrum shall indemnify, defend, and hold harmless, at its own expense any third party action, claim, suit or proceeding against Customer to the extent based on a claim or allegation that the Software, as made available to Customer by Spectrum and used in accordance with the terms and conditions of this Agreement, infringes a United States registered patent, copyright or trademark, and Spectrum shall pay the costs and damages finally awarded against Customer that are specifically attributable to such claim or those costs and damages agreed to by Spectrum in a monetary settlement of such action. Notwithstanding the foregoing, Spectrum has no responsibility pursuant to the preceding sentence for any claim, and Customer shall indemnify, defend, and hold harmless, at its own expense any third party action, claim, suit or proceeding against Spectrum, its officers, employees, agents, and representatives, to the extent arising out of or related to: (a) any modification to a Software not made by Spectrum; (b) Customer's designs, specifications, or instructions; (c) any combination or use of the applicable Software with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use and not authorized by Spectrum; (d) Customer failure to use the Software in accordance with the applicable Documentation and/or outside the scope of the rights granted under this Agreement; (e) Customer's continued use of the allegedly infringing Software after being notified of the alleged infringement claim or after being provided a modified version of the Software by Spectrum at no additional cost that is intended to address such alleged infringement; (f) or Customer's material breach of this Agreement.

8.2. IP. If any Software becomes or, in Spectrum's opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, Spectrum may, at its option: (a) procure for Customer the right to continue using such Software; (b) replace or modify such Software so that it becomes non-infringing without substantially compromising its functionality; or if (a) and (b) are not commercially practical in Spectrum's reasonable opinion, (c) terminate Customer's rights to the allegedly infringing Software. In case of termination pursuant to this Section, Spectrum shall refund: (i) the license fees paid by Customer for the allegedly infringing Software, less depreciation at the rate of 1/3 of such license fees per year, or, (ii) if licensed at the time by Customer for less than one (1) year, a pro rata portion of the license fees for that part of the year from the date of payment by Customer to the date of termination of the license for such allegedly infringing Software. If Spectrum selects the option 8.2(b) or 8.2(c) herein, Customer shall immediately cease use of the allegedly infringing Software. THIS SECTIONS SETS FORTH SPECTRUM'S ENTIRE OBLIGATION AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR ALLEGED OR ACTUAL INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY SOFTWARE.

8.3. Customer. Customer shall defend and indemnify Spectrum its officers, employees, agents, and representatives against any claim made or brought against Spectrum by a third party arising from: (i) Customer's breach of this Agreement, or (ii) the information, data, or materials, provided by, or behalf, of Customer infringes a United States registered patent, copyright or trademark, and Customer shall pay the costs and damages finally awarded that are specifically attributable to such claim or those costs and damages agreed to by Spectrum in a monetary settlement of such action.

9. CONFIDENTIALITY

9.1. Disclosure of Confidential Information. The parties acknowledge that, in the course of performance of this Agreement, one party (the "Disclosing Party") may find it necessary to disclose or permit access to its Confidential Information to the other party (the "Receiving Party"). The Disclosing Party's disclosure of, or provision of access to, its Confidential Information to the Receiving Party is solely in furtherance of this Agreement.

9.2. Confidential Treatment. The Receiving Party shall (a) only use the Confidential Information for the purpose of performing its obligations under this Agreement; (b) hold the Confidential Information in confidence and secure, protect and maintain the confidentiality of the Confidential Information, using the same degree of care as it uses to protect its own information of like nature, but in no circumstances less than reasonable care; and (c) not disclose the Confidential Information to others except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party.

9.3. Permitted Disclosure. Notwithstanding anything to the contrary in this Section titled "Confidentiality," the Receiving Party may disclose the Confidential Information: (a) to its or its employees, agents, and consultants who require it on a need-to-know basis in connection with their duties in performing the Receiving Party's obligations under this Agreement and; (b) to the Receiving Party's auditors, outside counsel, accountants and other similar business advisors; in each case, who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party's obligations under this Agreement, provided that, in each case, the Receiving Party shall remain responsible for all acts and omissions of such persons regarding the Confidential Information.

9.4. Compelled Disclosure. To the extent the Receiving Party is required to disclose Confidential Information under Law or pursuant to a duly authorized subpoena, court order or government authority (collectively, "Legal Process"), the Receiving Party shall (a) unless prohibited by Legal Process, provide the Disclosing Party with advance notice of such disclosure requirement or obligation and permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (b) limit the release of the Confidential Information to the greatest extent possible under the circumstances.

9.5. Exceptions. Obligations under this Section titled "Confidentiality" shall not apply to information which: (a) was in the public domain or generally available to the public prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes part of the public domain or generally available to the public before any wrongful act of the Receiving Party; (b) was in the possession of the Receiving Party without breach of any obligation hereunder to the Disclosing Party prior to receipt from the Disclosing Party or on behalf of the Disclosing Party; (c) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; or (d) is developed by the Receiving Party independent of the Confidential Information received from the Disclosing Party.

9.6. Remedies. If the Receiving Party has disclosed, or is threatening to disclose, any Confidential Information in breach of this Agreement, the Disclosing Party is entitled to seek an injunction or other equitable relief to prevent the Receiving Party from disclosing Confidential Information. The Disclosing Party is not prohibited by this provision from pursuing other remedies, including a claim for losses or damages.

10. LIMITATION OF LIABILITY

10.1. Exclusions. SPECTRUM WILL NOT HAVE ANY LIABILITY FOR ANY LOSS OF DATA, LOSS OF PROFITS, OR INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RESULTING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE.

10.2. Liability Cap. SPECTRUM'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF, RESULTING FROM OR RELATED TO THIS AGREEMENT, OR THE SOFTWARE WILL NOT EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE APPLICABLE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, SPECTRUM'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO SPECTRUM'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT WILL NOT EXCEED FIVE (5) TIMES THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE APPLICABLE SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

10.3. Limitation of Actions. ANY ALLEGATION, CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE, OR ANY OUTPUT, MATERIAL, CONTENT, OR OTHER DATA GENERATED BY OR THROUGH THE SOFTWARE MUST BE BROUGHT NO LATER THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE SOFTWARE, OUTPUT, MATERIAL, CONTENT, OR OTHER DATA THAT IS THE SUBJECT OF SUCH CLAIM OR CAUSE OF ACTION WAS FIRST DELIVERED OR MADE AVAILABLE TO CUSTOMER, REGARDLESS OF WHETHER CUSTOMER HAS DISCOVERED OR SHOULD HAVE DISCOVERED THE BASIS FOR SUCH CLAIM WITHIN SUCH PERIOD. ANY CLAIM NOT BROUGHT WITHIN THIS ONE (1) YEAR PERIOD SHALL BE PERMANENTLY BARRED, AND CUSTOMER HEREBY WAIVES ANY STATUTE OF LIMITATIONS TO THE CONTRARY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

11. COMPLIANCE

11.1. Usage. Customer acknowledges and agrees that Spectrum may verify Customer's compliance with this Agreement through verification procedures, including without limitation by gathering product utilization information. Upon request, Customer shall provide Spectrum with a report detailing Customer's installation and usage of the Software with sufficient specificity to establish Customer's compliance (or non-compliance) with the access and use limitations set forth in this Agreement.

11.2. Compensation. If Customer has exceeded the rights granted under this Agreement or increase the usage of the Software or downloads, Customer shall pay additional fees to Spectrum for the excess usage at Spectrum's then-current rates.

12. SECURITY

12.1. Spectrum's privacy policy can be found at www.clientbirthday.com/privacy-policy.

13. GENERAL.

13.1. Independent Contractors. The parties acknowledge that each party is an independent contractor of the other party, and each party may engage in other business activities at its sole discretion. This Agreement does not in any way create or constitute a relationship of employment, partnership, or a joint venture between the parties.

13.2. Assignment. Neither party may assign or transfer any of its rights under this Agreement or delegate any of its duties or obligations under this Agreement to any third party without the other party's prior written consent, except that an assigning party may, upon written notice, so assign, transfer or delegate without the other party's consent pursuant to a transfer of all or substantially all of the assigning party's business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void.

13.3. Force Majeure. Each party will be excused from performance of any of its obligations under this Agreement for any period during which, and to the extent that, it is prevented from performing such obligation as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, due to acts or omissions of government or military authority, natural disasters, strikes, lockouts, riots, acts of war, epidemics, pandemics, internet or other telecommunication delays, communication line failure and power failures.

13.4. Notices. All notices given pursuant to this Agreement shall be in writing and delivered by hand, by registered or certified mail with proper postage, by third party delivery service (e.g., FedEx, UPS) or by email (with confirmation copy sent by certified mail). Notices shall be delivered to the recipient party and addressed to the signatory provided by such Party, or to such other person and address as may be designated in writing by the recipient Party. All such notices will be deemed received upon the earlier of actual receipt or actual delivery to the notice address.

13.5. Amendment. This Agreement may only be amended if the amendment is made in a tangible writing and is signed by both parties.

13.6. Entire Agreement; Construction. This Agreement is the complete and exclusive agreement between Spectrum and Customer, and supersedes any proposal or prior agreement, oral or written, and any other communication between Spectrum and Customer relating to the subject matter of this Agreement. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable but that by limiting such provision it would become valid and enforceable, then such provisions shall be deemed to be written, construed, and enforced as so limited.

13.7. Governing Law. This Agreement shall be governed by and interpreted in accordance with Laws of the State of New York, without regard to its conflict of law provisions or rules. Company and Supplier agree that all actions and proceedings arising out of or related to this Agreement shall be brought only in a state or federal court located in New York County, New York, and Company and Supplier hereby consent to such venue and to the jurisdiction of such courts over the subject matter of such proceeding and themselves.

13.8. Representations. Customer represents and acknowledges that: (a) it has read and understands this Agreement; and (b) it has had an opportunity to have its legal counsel review this Agreement. In addition, the individual accepting this Agreement on Customer's behalf personally represents that he or she is duly authorized to accept this Agreement on behalf of Customer and that this Agreement is binding upon Customer.

13.9. Survival. These obligations which by their nature should survive termination or expiration of the Agreement shall survive termination or expiration of this Agreement.