MARKETPLACE TERMS OF USE
These Marketplace Terms & Conditions (the "Agreement") are entered into as of today’s date (the "Effective Date") between Nine After Inc. (“Nine After“), and the agreeing Company (“Vendor”).
1. DEFINITIONS AND INTERPRETATION: Unless specified, the following words and expressions shall have the meaning set forth below:
“Advertising” shall have the meaning set forth in Section 6.1(a);
“Agreement” means this Marketplace Terms & Conditions;
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;
“Nine After Content” shall have the meaning set forth in Section 11.2;
“Background IPR” shall have the meaning set forth in Section 11.1;
“Cancellation” means any cancellation of an order for Products made by: (i) a Customer in accordance with the Customer’s rights to do so as described in this Agreement; (ii) Nine After for suspected credit card fraud or for any other reason
“Chargeback” any amount demanded by a financial institution when it is required to a customer after the customer successfully disputes an item on his credit card statement; “Customer(s)” means the consumer(s) who purchase the Products from Vendor via the Marketplace;
“Customer Data” means all information including Personal Identifiable Information (“PII”) and information on Marketplace sales collected by Nine After on the Marketplace concerning a Customer;
“Data Protection Laws” means all data protection and privacy laws and regulations applicable to data used in connection with this Agreement and Nine After’s Privacy Policy that is incorporated into the Agreement, including Customer Data;
“Developed IPR” shall have the meaning set forth in Section 11.4;
“Initial Term” shall have the meaning as set forth in Section 14.1;
“Intellectual Property Rights (IPR)” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill and reputation or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Marketplace” means all URLs owned and/or operated by Nine After and/or Nine After’ Affiliates (including but not limited to www.Nine Afterapp.com) and any mobile device application(s) and desktop application(s) developed and/or operated by or on behalf of Nine After or Nine After’s Affiliates;
“Net Proceeds” shall have the meaning set forth in Section 6.2;
“Net Retail Price” means the price for Product on the Marketplace, which is solely determined by Vendor, but excluding (i) any shipping charges and/or costs; (ii) any import/export duties; and (iii) Sales Taxes;
“Net Sales” means the total Sales Price for all Marketplace Sales less (i) Cancellations; (ii) Returns; and (iii) Sales Taxes;
“No Stock” shall have the meaning set forth in Section 4.1(f);
“Privacy Policy” refers to Nine After’s Privacy Policy in effect as of the date of this Agreement available at www.nineafter.com/privacypolicy. Nine After shall provide Vendor with advance written notice of any changes to the Privacy Policy;
“Product(s)” means Vendor’s products made available for sale via the Marketplace in accordance with this Agreement;
“Renewal Term” shall have the meaning set forth in Section 14.1;
“Returns” means any Products returned by Customers in accordance with this Agreement and/or any other rights to reject/return products granted to the Customers by applicable laws;
“Sales Price” means the price finally set by Vendor in its sole discretion for sale of a particular Product and displayed on the Marketplace, including (i) any shipping charges and/or costs; (ii) import/ export duties and (iii) Sales Taxes;
“Special Promotions” shall have the meaning set forth in Section 5.2(a);
“Terms of Use” refers to Nine After’s Terms of Use in effect as of the date of this Agreement available at www.nineafter.com/termsandconditions.
2. THE SERVICES. Vendor appoints Nine After as a drop ship Vendor and authorizes Nine After to execute contracts on its behalf with Customers, as expressly provided herein. Nine After shall use commercially reasonable efforts to provide the Services to Vendor as follows:
a. subject to Vendor providing such information and assistance, display and offer the Products for sale to consumers in the Marketplace;
b. communicate with, and accept and process orders from, Customers using the Marketplace for the Products and provide the relevant information to Vendor to enable it to fulfill orders;
c. provide customer service support to Customers;
d. process Returns;
e. pay for all credit card processing fees; and
f. pay for any Chargebacks, provided however, Vendor shall reimburse Nine After for such Chargebacks, Returns, and/or any refunds to Customers issued by Nine After.
3. VENDOR’S OBLIGATIONS
3.1 Vendor shall
a. maintain complete and accurate Product information and images for the Product and all other relevant information relevant to the Products (including product safety certificates) as reasonably required by Nine After from time to time;
b. ensure that Customer orders are fulfilled; and
c. properly pack and ship Products within the Vendor’s stated shipping period.
3.2 Vendor shall fully comply with its obligations under the Agreement and shall perform all things reasonably required by Nine After to ensure such compliance.
3.3 Vendors shall share with Nine After Product prices, applicable taxes, and shipping costs intended for sale on the Marketplace.
3.4 Vendor shall maintain overall inventory management and timely fulfillment including, without limitation, accurate inventory quantities on the site and fulfill all confirmed orders for Customers in the agreed-upon timeframes. In addition to the foregoing, Vendor shall at all times take the necessary steps to ensure that its stock levels are synchronized with the Marketplace’s web server.
4. SALES AND RETURNS
4.1 Sales
a. Vendor acknowledges and agrees that Nine After is providing a Marketplace solely for Vendor’s online sales of the Products. Except as explicitly set forth in this Agreement, Nine After has no liability, responsibility, or performance obligations to Vendor relating to any Product.
b. Once a Customer pays for a Product, an order is executed (the “Order”). Vendor must ship the Product within its shipping period disclosed on Vendor’s website. Vendor’s shipping periods cannot be greater than thirty (30) days from the date of the Order. Vendor must provide tracking information for the Order to Nine After immediately upon creation of the Order. In the event an Order is outside the Vendor’s shipping period and if Vendor does not have any proof of the Order is in transit, Nine After reserves the right to cancel the Order and refund the Customer.
c. Products must be listed at the same selling price and shipping costs as on the Vendor’s own website or as provided by wholesale and/or other retail vendors. Vendor cannot whatsoever increase or change their prices without prior written notice to Nine After. Nine After has the right in its sole discretion to request appropriate pricing by the Vendor.
d. All sales to Customers conducted through the Marketplace shall be subject to: (1) in relation to payment processing, customer service, and hosting, a contract between Nine After and the Customer, and (2) in relation to all other aspects, a contract between the Customer and Vendor.
e. Vendor acknowledges and agrees that the Nine After’s Terms of Use and Privacy Policy shall be incorporated into the Agreement and apply to all Marketplace Orders.
f. If any Marketplace Order cannot be fulfilled due to Vendor’s failure to either keep its stock levels synchronized with the Marketplace’s web server or remove the relevant Product(s) from its non-Marketplace available stock (a “No Stock”), Nine After will refund the Customer. In addition to the foregoing, Nine After shall be entitled to any expenses it incurred related to such a refund.
g. Vendor shall ship ordered Products within 48 Business Hours or within published lead times from the point of receipt of the Order as mutually agreed to by the parties.
h. Nine After may obtain reimbursement of any amounts owed by Vendor or deduct such monies owed from future payments to Vendor.
4.2 Returns
a. Vendor shall accept and process all Returns in accordance with the Agreement, unless Product is Final Sale.
b. Vendor shall ensure that Returns are processed immediately upon arrival and notify Nine After of acceptance or rejection of a return within two (2) Business Days of receiving the returned Product. If Vendor does not raise an issue and/or question for any returned Product(s) and/or rejected the returned Product(s) within 2 Business Days from receipt of the return Product(s), Vendor will be deemed to have automatically accepted such returned Product(s).
c. If Nine After has already paid Vendor for a Product that has been returned and credit is not available within the next 90 days, Vendor shall be responsible for reimbursing Nine After cost of Product.
5. ADVERTISING AND PROMOTION
5.1 Advertising
a. At any time, Nine After may engage in advertising and marketing activities for the Marketplace generally and/or the Products. For example, Nine After may, but shall not be obligated to, use search engine optimization; online and offline public relations; online advertising; email newsletter campaigns; Affiliate advertising programs; industry events; social media, and/or any other strategy Nine After deems beneficial to the Marketplace generally and/or the Products (“Advertising”).
b. The scope and level of the Advertising is in Nine After’s sole discretion.
c. Vendor shall cooperate with Nine After in connection with Advertising and shall provide any information and/or assistance Nine After reasonably requires.
5.2 Special Promotions
a. Nine After may in its sole discretion engage in promotional activities relating to the Marketplace generally and/or the Products. Nine After may, but shall not be obligated to, use such strategies as free or discounted shipping; seasonal discounts; competitions; loyalty programs; and/or any other strategy Nine After deems appropriate (“Special Promotions”).
b. Nine After is under no obligation to engage in any Special Promotions and will not be held liable to Vendor for any decision by Nine After not to engage in Special Promotions. Nine After shall be responsible for any costs associated with Special Promotions that it offers, including shipping costs if discounted or free shipping is offered, and any Price Difference in the amount collected from Customers arising out of the Special Promotions.
c. Incorrect Product: in relation to each instance of Vendor delivering the wrong Product to a Customer. Vendor shall send out the correct Product within one business day and will pay the cost of expedited shipping at no cost to Nine After.
d. Incorrect Price: In any period during the Term Vendor in respect of the price of a Product provides inaccurate pricing to Nine After or a Customer, Vendor will be responsible for 100% of the price discrepancy. In the event Nine After posts inaccurate pricing on the Marketplace, other than as a result of Vendor providing such information, Nine After will be responsible for 100% of the price discrepancy.
6. PAYMENTS AND INVOICING
6.1 Nine After will collect payments from Customers on behalf of Vendor. A third-party payment processor will process all payments on behalf of Nine After. Nine After will use commercially reasonable efforts to ensure that all industry-standard checks and security systems are used when handling payments. Notwithstanding the foregoing, Vendor shall be solely responsible for complying with the terms of service and privacy policies of such third-payment processor.
6.2 For the purposes of this Agreement, the total amounts to be paid to Vendor by Nine After based upon Marketplace sales (the “Net Proceeds”) for each month shall be calculated in accordance with standard commission rate published on Nine After’s Website and in accordance with the following total calculation unless differing commission rate separately agreed to by both Nine After and the Vendor in writing:
Net Sales (in the relevant month)
- PLUS Price Difference;
LESS the total of the following (incurred in the relevant month):
i. any other fees charged by Nine After, which may be separately agreed to by the Parties in a signed writing; and
ii. any Returns processed during the prior month.
6.3 Unless Vendor disputes the calculation of the Net Proceeds communicated to it by Nine After within five (5) Business Days after it is sent, Vendor shall be deemed to have accepted the calculation.
7. PASSING OF TITLE, RISK AND INSURANCE
7.1 Title in the Products shall at no time pass to Nine After and shall remain with Vendor until Customer pays in full all sums due for the purchase of a Product. Upon full payment, title of the Product(s) will pass to the Customer.
7.2 Vendor shall be responsible for insuring the Products until delivery of the Products to the Customer.
8. WARRANTIES
8.1 Nine After and Vendor each warrant, represent and undertake that it has full capacity and authority to enter into and perform this Agreement and that those signing this Agreement are duly authorized to bind the relevant party
8.2 Vendor warrants, represents and undertakes that, throughout the Term:
a. all Products offered for sale on the Marketplace and delivered to Customers are new, unless classified as vintage products by Vendor; are free from defects; are not counterfeit; are of acceptable quality and comply with corresponding market standards for similar products; and comply with all applicable laws and may be lawfully sold to Customers. Notwithstanding the foregoing, Nine After may return, at Vendor’s expense, the Product if there is any discrepancy with the quantity, condition, or quality in the Product.
b. the Product information and images it provides to Nine After for the Products will be correct, accurate and complete and comply with any image guidelines that Nine After may, at its sole discretion, provide Vendor. To facilitate editorial review or additional required photography, Vendor agrees to send selected samples of Products, as required, to Nine After;
c. it has and shall maintain all necessary licenses, permits and consents to sell the Products to Customers as contemplated in this Agreement;
d. the Products and the sale and offering for sale thereof as contemplated in this Agreement shall not infringe or breach the rights (including, without limitation, the Intellectual Property Rights) of any third parties;
e. it shall comply with all applicable Data Protection Laws, particularly in respect of any customer personal data which it receives from Nine After under this Agreement and that in carrying out its obligations under this Agreement, it shall not put Nine After in breach of its applicable Data Protection Laws; and
f. it shall fully comply with its obligations under the Agreement and honor all the rights of the Customers thereby granted by the Agreement.
8.3 Nine After warrants, represents and undertakes that, throughout the Term:
a. it shall perform its obligations hereunder in a timely, professional, and workmanlike manner in compliance with all applicable law;
b. it has and shall maintain all necessary licenses, permits and consents to operate the Marketplace and otherwise perform as contemplated in this Agreement;
c. the Marketplace and the use thereof as contemplated in this Agreement shall not knowingly infringe or breach the rights (including, without limitation, the Intellectual Property Rights) of any third parties; and
d. it shall reasonably comply with applicable Data Protection Laws.
8.4 EXCEPT AS PROVIDED HEREIN, Nine After DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER.
9. INDEMNITY
9.1 Vendor shall indemnify, hold harmless, and defend Nine After and its parent, officers, directors, Vendors, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Nine After Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by an Nine After Indemnified Party arising out of or relating to, or resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise (collectively, “Claim”) of a third party: (i) relating to a breach of any representation, warranty or covenant made by Vendor under this Agreement; (ii) alleging or relating to any act or omission by Vendor in connection with the performance of its obligations under this Agreement; (iii) alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by Vendor’s acts or omissions including, without limitation, defects in or use of any Product; (iv) any alleged or actual infringement, by the Products of any third party’s Intellectual Property Rights; (v) relating to any failure by Vendor to comply with any applicable laws;(vi) relating to false or misleading Product information, warnings, or claims made under the Textile Fiber Products ID Act and the Fur Products Labelling Act; or (vii) Product recalls.
9.2 Nine After shall indemnify, hold harmless, and defend Vendor and its officers, directors, Vendors, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Vendor Indemnified Party”) against any and all Losses incurred by a Vendor Indemnified Party arising out of or relating to, or resulting from any Claim of a third party: (i) relating to a breach of any representation, warranty or covenant made by Nine After under this Agreement; (ii) alleging or relating to any act or omission by Nine After in connection with the performance of its obligations under this Agreement; (iii) alleging or relating to any actual infringement by the Marketplace of any third party’s Intellectual Property Rights or (v) relating to any failure by Nine After to comply with any applicable laws.
10. LIABILITY
10.1 NEITHER PARTY SHALL BE LIABLE, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2 Other than each party’s indemnification obligations in Section 9, each party’s total aggregate liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the amount of Net Proceeds under this Agreement during the 90 days prior to the date of the event giving rise to the liability, up to and including that date.
10.3 Section 10 shall continue in full force and effect notwithstanding the expiration or termination (however caused) of this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Each party reserves any and all rights in and to any Intellectual Property owned or licensed to it before the Effective Date or which is developed independently of this Agreement (“Background IPR”). This Agreement does not transfer either party’s Background IPR to the other party. In addition to the foregoing, Vendor warrants, represents and undertakes that it has all rights, consents and permissions required for Nine After to use the Vendor’s Background IPR including, without limitation, any Intellectual Property Rights in Vendor’s name and logo(s) and/or any other materials supplied by Vendor to Nine After under or in connection with this Agreement.
11.2 As between Vendor and Nine After, Nine After (or, to the extent applicable, third-party licensors of Nine After) owns all Intellectual Property in the Marketplace, technology, software, content, and/or materials that Nine After creates, provides, or makes available under this Agreement (the “Nine After Content”). All rights not expressly granted herein are expressly reserved by Nine After.
11.3 Vendor hereby grants a non-exclusive, royalty-free, perpetual, worldwide, irrevocable license including the right to sub-license of its Background IPR to Nine After solely for the purposes of providing the Services including, without limitation, offering and/or displaying the Products for sale on the Marketplace. Upon written request of Vendor, Nine After agrees to provide as commercially practicable, to Vendor specimens of use of any and all of Vendor’s Background IPR.
11.4 Any materials and deliverables created under this Agreement (including, but not limited to, notes, memos, electronic messages, computer code, charts, files, folders, labels, presentations, letters, drawings, artwork, forms, tables, reports, summaries), whether tangible or intangible, and whether solely by Vendor, or jointly with others (collectively “Developed IPR”), shall be considered the sole and exclusive property of Nine After. If for any reason all or any portion of the Developed IPR would not be considered a work made for hire under applicable law, Vendor hereby assigns, sells, transfers, grants, and conveys to Nine After, including all rights title and interest in the Intellectual Property under patent, copyright, trade secret, trademark or any other law, anywhere in the world, in perpetuity, in the Developed IPR.
11.5 Vendor is not permitted and shall not permit any third party, to use, reproduce, publish, or otherwise make available any of Nine After’ Background IPR and/or any Developed IPR, unless otherwise agreed in writing in advance by Nine After. This includes displaying any of Nine After’ Background IPR and/or any Developed IPR on Vendor’s website. Nine After’ Background IPR and Developed IPR may include content, pictures, imagery, text, designs, logos, Nine After’ trademarks, and/or any other materials displayed on the Marketplace and/or produced by or on behalf of Nine After.
11.6 On the termination or expiration of this Agreement: (i) each party shall immediately discontinue the use of any of the Intellectual Property of the other party (except as set forth in this Section 11); and (ii) Vendor shall immediately at Nine After’ request destroy and/or delivery up to Nine After any and all of Nine After’ Intellectual Property and/or materials containing Nine After’ Intellectual Property.
11.7 Vendor shall immediately notify Nine After in writing of any claim or proceedings made or threatened by a third party alleging that Nine After’ Background IPR and/or the Developed IPR infringes any of the rights (including, without limitation, Intellectual Property Rights) of any third party.
11.8 In respect of any claim or proceedings notified by Vendor pursuant to Section 11.6: (a) Nine After shall have exclusive control over and conduct of all claims and proceedings; (c) Vendor shall not make any admissions other than to Nine After and shall provide Nine After with all assistance that it may reasonably require in the conduct of any claims or proceedings; and (d) Nine After shall bear the cost of any claims or proceedings and shall be entitled to retain all sums recovered in any action for its own account.
11.9 Section 11 shall continue in full force and effect notwithstanding the expiration or termination (however caused) of this Agreement.
12. DATA PROTECTION
12.1 Both parties will comply with all applicable Data Protection Laws and any industry or self-regulatory codes applicable to it including, without limitation, Customer PII, which it receives pursuant to this Agreement. Nine After uses commercially reasonable efforts to ensure the accuracy of the Customer Data but does not warrant any of the Customer Data is accurate or complete and will not be liable for any error in the accuracy of any Customer Data or for any resulting loss, damage or expense.
12.2 Vendor will only use such PII for the purposes of processing and fulfilling the order for the Products and will not use PII for any direct marketing or other activities.
12.3 Vendor shall not solicit any business from a Customer using the Customer’s PII or send any unsolicited information to Customers. All customer service support activities will be provided by Nine After and Vendor will not have any direct contact with Customers, without the prior consent of Nine After.
13. CONFIDENTIAL INFORMATION
13.1 Each Party understands and agrees that during the Term it may be furnished with or otherwise have access to information, whether disclosed in writing, orally or by other means, that the other Party considers to be confidential, including but not limited to business, financial and technical information, plans, research, software, inventions, formulae, vendor and customer information, equipment, reports, forecasts, prices, cost and personnel data, designs, methods, techniques, trade secrets, processes and know-how, whether tangible or intangible and whether or not stored, compiled or memorialized physically, electronically, graphically or in writing (the “Confidential Information”). For the avoidance of doubt: (a) Customer Data and PII shall be the Confidential Information of Nine After; and (b) the fact of Vendor selling its Products on the Marketplace and details of those Products shall not constitute confidential information.
13.2 The Party disclosing Confidential Information shall be referred to as the “Disclosing Party” and the Party receiving Confidential Information shall be referred to as the “Receiving Party.” Notwithstanding the foregoing, Confidential Information shall not include information which: (a) is or becomes part of the public domain through a source other than Receiving Party; (b) was rightfully known to Receiving Party at the time of disclosure with no confidentiality obligations to a third party; (c) is independently developed by Receiving Party without breach of this Agreement; or (d) is subsequently learned from a third party not under a confidentiality obligation to Disclosing Party. Confidential Information disclosed to Receiving Party hereunder is and shall remain the exclusive property of Disclosing Party.
13.3 Receiving Party agrees: (a) not to disclose any Confidential Information to a third party; (b) to use the Confidential Information only for the purpose of performing its obligations hereunder and (c) to secure, protect and maintain the confidentiality of the Confidential Information of Disclosing Party, using at least as great a degree of care as it uses to maintain the confidentiality of its own information of a similar nature or importance, but in no event less than reasonable care.
13.4 The Receiving Party may disclose such information to its Affiliates and its and its Affiliates’ employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Receiving Party’s obligations under this Agreement and as may be required by applicable laws, court order or any governmental or regulatory authority. The Receiving Party shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this section 14.
13.5 The Receiving Party shall not use any such information for any purpose other than to perform its obligations under this Agreement.
13.6 The Parties acknowledge and agree that breach of this Section 14 may cause irreparable harm and that, without posting bond or other security, Disclosing Party may seek and obtain injunctive or other equitable relief against such breach or threatened breach without prejudice to any other remedies which may be available to Disclosing Party.
13.7 Section 14 shall continue in full force and effect notwithstanding the expiration or termination (however caused) of this Agreement.
15. FORCE MAJEURE. If either party is prevented or delayed (directly or indirectly) from performing its obligations under this Agreement (the “Non-performing Party”) by reasons beyond its reasonable control, including but not limited to, acts of God, war, embargo, riot(s), strike(s), lock-out(s), trade dispute(s), fire(s), break-down, pandemics, inclement weather, interruption of transport, Government action (“Force Majeure Event”), the Non-performing Party shall be relieved of its obligations under this Agreement to the extent that performance of such obligations is delayed or prevented by the Force Majeure Event (provided that the Non-performing Party has given written notice of the same to the other party). If the Force Majeure Event continues for a period of three (3) months or more, the party other than the Non-performing Party shall be entitled, upon written notice to the Non-performing Party, to terminate this Agreement without any liability for such termination or to extend the time or times for performance of the Non-performing Party’s obligations under this Agreement by a period equivalent to that during which such performance has been prevented by the Force Majeure Event.
16. INDEPENDENT CONTRACTOR. Vendor is an independent contractor of Nine After, and this Agreement shall not be construed to create any partnership or joint venture, or employment relationship between any of the parties, or authorize either party to make or enter into any commitments for or on behalf of the other party except as expressly set out in this Agreement.
17. NOTICES. All notices, requests and consents hereunder shall be in writing and deemed given on the date received as evidenced by proof of receipt, if delivered to the Parties’ addresses set forth herein by (a) hand; (b) certified mail, return receipt requested; (c) overnight courier of national reputation; or (d) fax or e-mail, if confirmed by (a), (b) or (c).
18. ASSIGNMENT. Neither this Agreement nor any right, interest or obligation of the parties under this Agreement shall be assigned or be assignable by the parties without the prior written consent of the other party, except that either party may assign or transfer this Agreement without such consent to an Affiliate or in connection with a merger, acquisition, divestiture, spin-off, change of control, corporate restructuring or similar such transaction or sale of all of substantially all of its assets related to this Agreement. Any unapproved assignment in violation of this Section 18 by any party shall be void and of no effect.
19. AMENDMENT. In order for an amendment of this Agreement to take effect that amendment must be in writing and signed by both parties.
20. WAIVER. The failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute as a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. Single or partial exercise of any such right or remedy shall not prevent or restrict the further exercise of that or any other right or remedy.
21. THIRD PARTY RIGHTS. Except as expressly provided, a person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement. This Agreement does not create any third-party beneficiaries. The right of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
22. SEVERABILITY. If any provision of this Agreement shall at any time be or become or be held by a competent court of law to be void, voidable, illegal or unenforceable, the remaining provisions shall continue in full force and effect and any void, voidable, illegal or unenforceable provision shall be severed from this Agreement and replaced by a lawful and enforceable provision which, so far as possible, achieves the same effect and benefits for the parties that the void, voidable, illegal or unenforceable provision was intended to achieve. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. The invalidity of any provision shall not relieve either party of the advantage of any other provision of this Agreement.
23. ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the parties, whether oral or written, in relation to that subject matter.
24. GOVERNING LAW/JURISDICTION. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the state of New York irrespective of where the circumstances giving rise to any action may have arisen, without regard to the principles thereof with respect to conflicts of law. Each party irrevocably agrees that the state and/or federal courts sitting in New York, New York shall have exclusive jurisdiction to resolve any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The parties consent to venue in such courts.
WHEREFORE, Nine After and Vendor have executed this Agreement and agree to be legally bound by all terms and conditions contained herein.