Terms and Conditions
(a) “Aggregate Data” means Customer Data (as defined in Section 6(a)) that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used identify Customer or Users as the source of such data.
(b) “Client Servers” means servers that are owned or controlled by Customer and on which installation and operation of the Platform has be authorized by TurnKey.
(c) “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Platform.
(d) “Customer Facilities” means Credentials and any account, hardware, system or other facility within Customer’s custody or control.
(e) “Customer Responsibilities” means the tasks responsibilities specified in each SOW as tasks and responsibilities that Customer will perform or fulfill.
(f) “Deliverables” means any work product or other materials created by TurnKey pursuant to the Order Form or any SOW, which are specifically identified as “Deliverables” in the Order Form or any SOW.
(g) “Emergency Security Issue” means any: (i) use of the Platform by Customer or Users that disrupts or is reasonably likely to disrupt the availability of the Platform to other users; or (ii) access to the Platform by any unauthorized third party through use of any Customer Facilities.
(h) “Users” means customers and potential customers of Customer who interact with the Platform.
(i) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
(j) “Platform” means TurnKey’s proprietary software and services, including an online platform and Application Programming Interfaces (“APIs”), each as may be updated from time to time, for loan origination and account processing.
(l) “Professional Services” means any integration, training, development or other professional services to be provided by TurnKey as specified in the Order Form or any SOW.
(m) “Suggestions” means any suggestions, comments, ideas, improvements or other feedback relating to the Platform that Customer elects to provide or make available to TurnKey.
(n) “SOW” means a statement of work executed in writing by the parties under this Agreement.
(o) “SLA” means TurnKey’s then-current service level agreement, available at https://www.turnkey-lender.com/support/sla (or a successor location).
(p) “Support” means the maintenance and support services for the Platform (if any) to be provided by TurnKey to Customer as specified in the Order Form, and as further detailed in the Technical Support Policy.
(q) “Technical Support Policy” means TurnKey’s technical support policy, as may be updated from time to time in TurnKey’s sole discretion. The Technical Support Policy is posted at: https://www.turnkey-lender.com/support/TurnKey-Lender-Support-Policy (or a successor location).
Grant of Rights and Restrictions
(a) Grant of Rights. As set forth in the Order Form or applicable SOW and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement (including any limitations on use set forth in the Order Form), TurnKey hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable (except with respect to Users) right to (i) access and use the Platform only in the form made available by TurnKey, (ii) if authorized in the applicable Order Form or SOW, install the Platform on Client Servers, and (iii) access TurnKey’s APIs for the sole purpose of creating software that communicates with the Platform. The specific Platform and rights that TurnKey or its licensors will provide to Customer for access and use under this Agreement are listed on the Order Form applicable SOW.
(b) APIs. If Customer licenses access to TurnKey’s APIs, such license may allow Customer to create, distribute, sell, lease, rent, and distribute any software created by Customer that utilizes the APIs, provided that such software is a non-derivative work of the APIs and does not compete with the Platform.
(c) Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Platform; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Platform; (iii) access the Platform for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Platform; (iv) take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure or that negatively affects the ability of others to access or use the Platform; (v) rent, lease, lend, sell or sublicense they Platform or otherwise provide access to the Platform as part of a service bureau or similar fee-for-service purpose; or (vi) use the Platform in any way that does not comply with all applicable laws and regulations.
(d) Changes. TurnKey may improve, modify, add or remove functions or features to or from the Platform from time to time, with or without notice to Customer.
(a) Professional Services. TurnKey shall provide Customer with the Professional Services and Deliverables set forth in the Order Form or in an SOW. Each SOW will be governed by the terms and conditions of this Agreement and will specify, among other terms the parties deem relevant: (i) a description of the Professional Services and Deliverables that TurnKey will provide; (ii) the schedule for performance; and (iii) the fees that Customer will pay and the schedule for payment. An exemplary format for each SOW is set forth as Exhibit A to this Agreement. In the event of any conflict between the terms and conditions of this Agreement and any SOW, the terms and conditions of this Agreement shall take precedence except as expressly and unambiguously stated otherwise in the applicable SOW.
(b) Acceptance. Within 5 days after TurnKey submits the Platform, a Deliverable, or the Professional services to Customer for review (“Review Period”), Customer shall give written notice to TurnKey specifying the manner, if any, such item fails to conform in any material manner to any specifications set forth in this Agreement, including the applicable Order Form or SOW (“Notice of Deficiency”). If the Review Period concludes without Customer giving Notice of Deficiency to TurnKey, then such item shall be deemed accepted by Customer. In the event the Customer issues a Notice of Deficiency, TurnKey shall use its commercially reasonable best efforts to resolve the deficiencies identified as promptly as possible and resubmit the applicable item to Customer for review pursuant to this Section 3(b).
(c) Change Order. From time to time, a party may request changes to the Professional Services or Deliverables. Upon such request, the parties shall negotiate in good faith on a change order to incorporate any changes requested and any appropriate changes to the SOW, including any appropriate changes to the schedule for performance or fees (each, a “Change Order”). No Change Order will be binding unless it has been accepted in writing by both parties.
(d) License to Deliverables. TurnKey grants Customer a non-exclusive, non-transferable right to use, copy and create derivative works from the Deliverables (without the right to sublicense) for Customer’s internal business operations, as contemplated by the applicable SOW or Order Form.
(e) Customer Responsibilities. Customer acknowledges and agrees that the fees set forth in each SOW, and TurnKey’s performance of Professional Services and completion of Deliverables under each SOW are subject to: (i) Customer completing Customer Responsibilities in a timely manner; (ii) the assumptions set forth in the SOW remaining valid; (iii) Customer obtaining all licenses and consents required from third parties with respect to any materials provided by Customer under this Agreement that are required for use by TurnKey to fulfill its obligations hereunder; (iv) Customer providing TurnKey with appropriate credentials (e.g., testing, live, production, etc.) for any third-party applications Customer wishes to integrate with the Platform; and (v) Customer creating, and providing TurnKey with access to, a sufficient number test applications (e.g., 3 – 5) on the production instances of the relevant third-party applications.
(f) Non-Solicitation. During the term that Professional Services and/or Platform are being provided and for a period of three (3) years thereafter, Customer will not, directly or indirectly, solicit for employment any person employed or contracted by TurnKey or any of its affiliates that have provided Professional Services under this Agreement.
(a) Technical Requirements. Customer shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required for Customer to access the Platform, including computers, mobile devices, operating systems, web browsers and storage devices.
(b) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Platform through use of Customer Facilities, Customer shall promptly give written notice to TurnKey of such unauthorized access or use and make reasonable efforts to eliminate such unauthorized access or use. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Platform through Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care. Customer acknowledges that TurnKey is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
(c) Customer Back-Up. Customer acknowledges that it may not have access to Customer Data through TurnKey or the Platform following the expiration or termination of the Agreement.
Fees and Taxes
(a) Fees. Customer shall pay TurnKey the applicable fees set forth in the Order Form or an SOW pursuant to the payment terms therein. In the event that the Order Form or an SOW does not set forth payment terms, payment shall be due within thirty (10) days from the date of invoice. Any payment not received from Customer when due shall incur interest at the rate of one percent (1%) per week or the maximum amount permitted by law, whichever is lower, on any outstanding balance, plus all expenses of collection. In addition to any other remedies available, TurnKey may suspend Customer’s access to the Platform, in whole or in part, if any payment is delinquent.
(b) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If TurnKey has the legal obligation to collect any Taxes, Customer shall reimburse TurnKey upon invoice by TurnKey.
(a) Responsibility for Data. All information, data, and other materials accessible or calculated through the Platform (“Data”) are the sole responsibility of the party from whom such materials originated. The Platform may provide access to or rely on Data from third parties, and such third parties, and not TurnKey, are entirely responsible for such Data. Customer and Users, and not TurnKey, are solely responsible for: (i) all Data that Customer and Users calculate, submit, upload, email, transmit, process or otherwise make available through the Platform (“Customer Data”); and (ii) giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Platform.
(b) Customer Ownership. TurnKey acknowledges and agrees that, as between Customer and TurnKey, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data. Customer hereby grants TurnKey and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Customer Data (including Aggregate Data) as necessary for TurnKey to provide access to the Platform to Customer and Users (including any Professional Services and Support).
(c) Aggregate Data. Customer acknowledges and agrees that TurnKey may collect or generate Aggregate Data in connection with providing Customer and Users with access to the Platform, and Customer hereby grants TurnKey and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose.
(d) Security; Infrastructure; Backup. TurnKey will maintain commercially reasonable administrative, physical and technical safeguards to maintain and protect Customer Data (including, without limitation, Confidential Information) in TurnKey’s custody or control; provided, however, that TurnKey will not be responsible for loss of data transmitted on networks not owned or operated by TurnKey. In the event that TurnKey hosts the Platform for Customer (i) Customer hereby expressly agrees to and approves TurnKey’s use of the Azure, Google or AWS as subcontractors for providing the Platform, and (ii) TurnKey will maintain a reasonable backup of Customer Data for an orderly and timely recovery of such Customer Data in the event that the Platform may be interrupted.
(a) TurnKey Ownership. Customer acknowledges and agrees that, as between TurnKey and Customer, TurnKey owns all right, title and interest (including all Intellectual Property) in and to the Platform and Deliverables, and all improvements, enhancements or modifications thereto, including all Data therein (except for Customer Data), regardless of whether or not any such improvements, enhancements or modifications are made pursuant to the Order Form or an SOW.
(b) Suggestions. In the event that Customer provides any Suggestions to TurnKey, Customer hereby grants TurnKey and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions for any lawful purpose, without credit or compensation to Customer.
(c) Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Platform.
(d) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
Term, Suspension and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of the Initial Term, each as specified in the Order Form. Thereafter, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days before the conclusion of the Initial Term or applicable Renewal Term. TurnKey reserves the right to change prices for the Platform, Professional Services and/or Support for any upcoming Renewal Term by providing notice of such change within the Platform or via email to Customer at least thirty (30) days before the commencement of the applicable Renewal Term. If any SOW is in effect at the time of the expiration or termination of this Agreement, then as it applies to such SOW only, the term of this Agreement shall be extended until the expiration or termination of such SOW.
(b) Suspension. TurnKey reserves the right to suspend Customer or any End User’s access to the Platform in the event of an Emergency Security Issue. TurnKey will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue. TurnKey further reserves the right to suspend or revoke access to the Platform by any End User who violates this Agreement or any Policy.
(c) Termination for Cause. Notwithstanding anything to the contrary, this Agreement or any SOW may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement or applicable SOW by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party, provided that, in the event such breach relates only to a specific SOW, termination shall be limited to such SOW; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
(d) Termination for Convenience. Customer may terminate this Agreement for any or no reason upon thirty (30) days prior written notice to TurnKey; provided, however, that Customer shall remain obligated for all amounts committed during the Initial Term of any Order Form or SOW and all Fees already paid shall be non-refundable.
(e) Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) Customer shall immediately cease all use of the Platform and uninstall all copies of the Platform from Client Servers; (ii) all amounts owed by Customer to TurnKey under this Agreement or an SOW shall become immediately due and payable; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 11(a)) and return or destroy all copies of such Confidential Information that are within its custody or control.
(f) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(c) (Restrictions); 3(f) (Non-Solicitation); 5 (Fees and Taxes); 6 (Intellectual Property); 8(e) (Events Upon Termination); 8(f) (Survival); 9(a) (General Representations and Warranties); 10 (Indemnification); 11 (Confidential Information); 12 (Disclaimer of Warranties); 13 (Limitation of Liability); and 14 (Miscellaneous).
Representations and Warranties
(a) General. TurnKey and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement; (f) it will comply with all applicable laws, rules, or regulations applicable to its performance under this agreement.
(b) TurnKey Warranties. TurnKey further represents and warrants that: (i) TurnKey will perform the Professional Services in a competent and workmanlike manner, (ii) TurnKey shall use commercially reasonable efforts to provide the Platform in accordance with the SLA, and (iii) TurnKey has used commercially reasonable efforts to ensure that the Platform, at the time of delivery, is free from any known and undisclosed virus, worm, trap door, trojan horse or other limiting routine, instruction or design that would erase data or programming or otherwise cause the Platform to become inoperable or incapable of being used in the manner for which it was designed or in accordance with the applicable documentation.
(a) TurnKey Indemnification. TurnKey agrees that Customer shall have no liability and TurnKey shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that Customer’s use of the Platform infringes the Intellectual Property of such third party; provided, however, that TurnKey shall have no obligation to indemnify Customer from any Losses to the extent they arise from: (i) use of the Platform in any manner by Customer (or through Customer Facilities) that does not comply in all material respects with the terms and conditions of this Agreement, or applicable laws or regulations; (ii) use of the Platform by Customer (or through Customer Facilities) in combination with any hardware or software not provided or approved by TurnKey; (iii) modifications to the Platform by or on behalf of Customer; or (iv) any Customer Data (Sections 10(a)(i) through 10(a)(iv), collectively, “Customer Acts”). In the event that any part of the Platform becomes the subject of a Loss or TurnKey reasonably determines that any part of the Platform is likely to become the subject of a Loss, TurnKey may, at its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by TurnKey under this Agreement; (2) modify or replace the Platform to avoid infringement, provided, however, that the Platform as modified or replaced retains materially the same or better features and functionality; or (3) terminate this Agreement and provide a pro rata refund of the fees paid by Customer to TurnKey for the unused portion of the Initial Term or Renewal Term, as applicable. This Section states Customer’s sole and exclusive remedies for claims of intellectual property infringement.
(b) Customer Indemnification. Customer agrees that TurnKey shall have no liability and Customer shall indemnify, defend and hold TurnKey harmless against any Loss to the extent arising from Customer Acts.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 10, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
(a) Definition. “Confidential Information” means information identified in good faith by either party as confidential or proprietary, or information that, under the circumstances, should reasonably be understood to be confidential or proprietary. Confidential Information shall include the terms and conditions of this Agreement, the source code and architectural framework of the Platform, information relating to future releases of the Platform and pricing information and business plans provided by either party. For the avoidance of doubt, “Confidential Information” does not include Suggestions.
(b) Non-Disclosure. Each party agrees that it will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third-party Confidential Information of the other party. The receiving party shall protect Confidential Information of the disclosing party using the same degree of care it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable care. The foregoing obligations shall not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party on a non-confidential basis by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.
DISCLAIMER OF WARRANTIES
(a) THE PLATFORM AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 9), EXPRESS OR IMPLIED, INCLUDING: (i) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (ii) ANY WARRANTY AS TO THE RESULTS OR ACCURACY OF CALCULATIONS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM, AND (iii) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PLATFORM AND ANY PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF THE PLATFORM AND PROFESSIONAL SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER OR USERS’ REQUIREMENTS.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) TURNKEY SHALL NOT BE RESPONSIBLE FOR ANY MODIFICATIONS TO THE PLATFORM MADE BY OR ON BEHALF OF CUSTOMER, (ii) TURNKEY SHALL NOT BE RESPONSIBLE FO THE STABILITY OF THE PLATFORM IN THE EVENT OF MODIFICATIONS TO THE PLATFORM MADE BY OR ON BEHALF OF CUSTOMER; AND (iii) TURNKEY HAS NO CONTROL OVER CHANGES TO THIRD-PARTY APPLICATIONS, INCLUDING THE APPLICABLE THIRD-PARTY API, AND SHALL NOT BE RESPONSIBLE FOR ANY CHANGES TO THE STABILITY OF THIRD-PARTY INTEGRATIONS RESULTING FROM SUCH CHANGES TO THE THIRD-PARTY APPLICATIONS.
LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, BREACH OF SECTION 2(c) OR 11, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICE OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) EXCEPTING FEES OWED TO COMPANY UNDER SECTION 5, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY COMPANY FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
(a) Marketing Activities. Customer gives TurnKey permission to use Customer’s name and other identifying information as part of TurnKey’s sales and marketing activities and related reference material subject to Customer’s written approval. TurnKey reserves the right to include a footer link "Powered by TurnKey Lender” on Customer’s website.
(b) Independent Contractors. The relationship between TurnKey and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(c) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 14(c):
TurnKey Lender Inc.
901 S MoPac Expressway,
Building 1, Suite #310
Austin, TX 78746 USA
As set forth in Order Form
(d) Assignment. Neither party may assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of the other party; provided, however no such consent shall be required for assignment of this agreement in conjunction with a merger, acquisition, corporate reorganization or sale of all or substantially all of such party’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.
(g) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(h) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(i) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(j) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(k) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(l) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection, Internet access or related problems beyond the demarcation point of Platform, network intrusions or denial of service attacks or any other cause beyond the reasonable control of the party invoking this provision.
(m) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.