Pinpoint Predictive 
Terms of Service

®

These Terms of Service (the “Terms of Service”) represent a legal agreement between you (“You”, “Your” or “Merchant”) and Pinpoint Predictive, Inc. (“Pinpoint”, “We” or “Us”) for the audience analysis and customer marketing services offered via a variety of first and third-party software (the “Software”), applications (each, an “App”) and other technologies and associated documentation provided to you by Pinpoint (collectively, the “Services”).  Please read the Terms of Service carefully.  By downloading an App, accessing or using the Services, or otherwise indicating your acceptance of the Terms of Service via an App Store (as defined herein), you accept and agree to be bound by the Terms of Service.  The date that you first accept the Terms of Service shall be considered the “Effective Date”.  If you do not accept the Terms of Service, then you may not use the Services.  Further, you may not accept the Terms of Service or use the Services if: (a) you are not of legal age to form a binding contract with Pinpoint; or (b) you are prohibited by law from receiving or using the Services.  If you are entering into the Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the Terms of Service, in which case “You”, “Your” or “Merchant” shall refer to such entity.  If the parties have entered into a separate written and executed agreement regarding the subject matter thereof, that agreement will supersede the Terms of Service to the extent of any conflict.


Last Updated:  September 18, 2019


1.    General Terms


a.    The Services may be subject to supplemental terms, posted guidelines, rules or other terms made available by Pinpoint from time to time (collectively, the “Additional Terms”), which are incorporated herein by reference.  If there is any conflict between any provision in the Terms of Service and the Additional Terms, the Terms of Service shall take precedence in relation to the Services unless the Additional Terms identify and expressly supersede the provision in these Terms of Service.


b.    Pinpoint may change the Terms of Service from time-to-time at its sole discretion, and if Pinpoint makes any material changes, we will notify you by sending you an email to the last email address you provided to us and by posting the revised Terms of Service at www.pinpointpredictive.com/tos.  Therefore, you agree to promptly notify us of any changes in your email address.  Any material changes to the Terms of Service will be effective upon the earlier of the dispatch of the email notice to you or the date of posting of notice of the changes and we will revise the Last Updated date above.  These changes will be effective immediately for new users of the Services.  Pinpoint may require you to provide consent to the updated Terms of Service before further use of the Services is permitted.  Otherwise, your continued use of the Services constitutes your acceptance of the changes.  Please regularly check www.pinpointpredictive.com/tos to view the then-current Terms of Service.


c.    Our Privacy Policy is located at www.pinpointpredictive.com/privacy-policy. Please review the Privacy Policy to learn about: (a) what information we may collect; (b) what we use that information for; and (c) with whom we share that information.


2.    Services


a.    Subject to the terms of the Terms of Service, Pinpoint grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license during the Term (as defined below) to access and use the Services as contemplated herein.  You may also grant each Authorized User the right to access and use the Services pursuant to the license granted to you herein.  An “Authorized User” is any individual who is authorized by virtue of such individual’s relationship to, or permissions from, Merchant, to access the Services pursuant to Merchant’s rights under these Terms of Service.  An Authorized User must be an employee or contractor of Merchant.


b.    Merchant acknowledges and agrees that the functionality available via the Services may vary depending on your subscription level.


c.    Subject to the terms of the Terms of Service, Pinpoint grants to you a perpetual, non-exclusive, non-transferable, non-sublicensable license to use any results, reports, or content accessed on or downloaded from the Services.


d.    You may not: (a) rent, loan or re-license rights to access and/or use the Services (except as specifically provided herein); (b) modify, alter, create derivative works of, reverse engineer, decompile, or disassemble any part of the Services; (c) share identification or password codes with persons other than Authorized Users or permit Merchant’s account to be accessed by individuals who are not Authorized Users; or (d) use the Services in any way not expressly provided for in the Terms of Service.  You will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Pinpoint or its licensors on any aspect of the Services.


e.    Merchant shall be responsible for all activities that occur under Merchant’s account, including any acts or omissions of Authorized Users and their compliance with the terms of the Terms of Service.  Merchant shall notify Pinpoint of any unauthorized use of Merchant’s passwords or account or any other breach of security that is known or suspected by Merchant.  Merchant shall abide by all applicable local, state, national and foreign laws, rules and regulations in connection with its use of the Services.


f.    Except for the limited licenses granted hereunder, Pinpoint reserves all rights not expressly granted.


g.    All data uploaded, submitted or otherwise made available by or on behalf of Merchant in connection with its use of the Services (“Merchant Data”), inclusive of any information about your consumers that you upload, submit or otherwise make available through the Services, such as consumers’ names, email addresses, shipping addresses, phone numbers and shopping behaviors (“Consumer Data”), shall belong to Merchant, provided however that Merchant hereby grants to Pinpoint: (a) a limited, non-exclusive, non-sublicensable, non-transferable, revocable license during the Term (as defined below) to use the Merchant Data solely for the purpose of providing the Services to the Merchant; and (b) a non-exclusive, sublicensable, transferrable, perpetual, irrevocable license to anonymized, aggregated or de-identified Merchant Data, for its lawful business purposes, including for providing, operating, improving and marketing our products and services.  All rights in and to the Merchant Data not expressly granted to Pinpoint hereunder are reserved by you.


h.    You are responsible for all Merchant Data that you provide via the Services, including your processing of such Merchant Data.  To the extent that any applicable laws, rules or regulations, including the California Consumer Protection Act (“CCPA”), impose an obligation upon you to comply with a consumer’s request for access to or deletion of their personal information that is Consumer Data, you will promptly notify Pinpoint and honor the consumer request.


i.    Pinpoint will maintain administrative, physical, and technical safeguards for protection of the security and integrity of Merchant Data.  Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Merchant Data by Pinpoint personnel except: (i) to provide the Services and prevent or address service or technical problems; (ii) as may be compelled by law; or (iii) as Merchant expressly permits in writing.


j.    Subject to the terms of these Terms of Service, Pinpoint may provide to you its standard support services applicable to the Services to which you are entitled to receive per any applicable Fee Schedule (as defined herein).


k.    You grant Pinpoint with a limited, non-exclusive, royalty-free license during the Term to use your trade names and logos (“Merchant Marketing Content“) in our customer lists for marketing purposes.  Pinpoint agrees not to alter or create derivative works of the Merchant Marketing Content or to use them for any other purposes.


l.    You hereby grant to Pinpoint a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services and otherwise use any suggestions, enhancement requests, recommendations or other feedback provided by you, including your Authorized Users, relating to the Services.  We shall not identify you or your Authorized Users as the source of any such feedback.


3.    License to the Services


a.    Subject to your acceptance of the Terms of Service, Pinpoint grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Services as described herein.


b.    If you access the Services via an App, then, subject to the Terms of Service, Pinpoint grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on one or more mobile devices or computers that you own or control and to run such copy of the App solely for its intended purpose.  Furthermore, with respect to any App accessed through or downloaded from an e-commerce app marketplace (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using the App.  To the extent that the Terms of Service are in conflict with the Usage Rules, the more restrictive terms apply.


4.    Ownership


a.    You acknowledge and agree that: (i) all right, title and interest in and to the Services, and all intellectual property rights, including copyrights, trade secrets, trademarks (inclusive of “Pinpoint Predictive” and “Thinkalike”), trade names, service marks, slogans, logos, other trade-identifying symbols embodied therein or associated therewith, are owned by Pinpoint or its third party licensors; (ii) no right or interest in the Services is conveyed to you other than the limited licenses granted herein; (iii) the Services are protected by copyright and other intellectual property laws; and (iv) Pinpoint asserts that the Services are Confidential Information of Pinpoint.


5.    Fees


a.    In consideration for the rights granted to you, you will pay to Pinpoint the fees described in the fee schedule applicable to your use of the Services (the “Fee Schedule”) in accordance with the payment terms set forth therein.  The applicable Fee Schedule and payment terms is subject to change at any time with 15 days’ notice, in our sole discretion.  We will notify you prior to the effectiveness of any change in the applicable Fee Schedule, and if you do not agree to any such changes, you must stop using the Services and provide us with notice of termination in accordance with Sections 7 and 11.  Except as expressly provided herein, all fees are non-refundable.


b.    If you receive the Services by means of an App Store, the App Store may be responsible for billing you for the Services and you may be subject to additional terms and conditions.  In the event of any conflict between the Terms of Service and the App Store’s terms and conditions, the Terms of Service shall control except with respect to the payment provisions set forth in this Section 5 and termination provisions set forth in Sections 7 and 11.


c.    Any disputes about any charges to you under the Terms of Service must be submitted to us in writing within 60 days of the date such charges are incurred.  You agree to waive all disputes not brought within the 60-day period, and all such charges will be final and not subject to challenge.  In addition to any remedies Pinpoint may have for non-payment, delinquency in payment may result in a delay or suspension of Authorized Users’ and your access to the Services.  In the event Pinpoint incurs any costs (including reasonable attorney’s fees) from efforts collecting overdue fees from you, you agree to pay such costs.


d.    The fees are exclusive of, and you will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon you in connection with the Terms of Service, except for employment taxes for Pinpoint employees and taxes based on Pinpoint’s net income.


6.    Confidentiality


a.    “Confidential Information” means all non-public information associated with a party’s business that a party (the “Disclosing Party”) shares with the other party (the “Receiving Party”), inclusive of: (i) proprietary information, works, media, and marketing material related to current, future, and proposed products and services; (ii) trade secrets and other non-public protectable intellectual property; and (iii) customer, financial, and other business information.  Receiving Party will, with respect to the Disclosing Party’s Confidential Information: (a) not use it except as necessary for performing its obligations or exercising its rights hereunder; (b) protect it with at least the same degree of care that Receiving Party uses to protect its own Confidential Information, in no case less than reasonable care; and (c) allow only Receiving Party’s employees or authorized representatives (including third-party service providers) to access it who have a need to know and who are bound by confidentiality obligations at least as restrictive as those in the Terms of Service.  Receiving Party has no obligation with respect to Confidential Information that: (1) was already in the public domain or is already known by Receiving Party with no obligation of confidentiality prior to disclosure from Disclosing Party; (2) becomes known to the Receiving Party from a source that is not subject to confidentiality; or (3) is independently developed by the Receiving Party without reference to the Confidential Information.  Receiving Party may disclose Confidential Information without liability to the extent required by any law, regulation, or order of any court of proper jurisdiction over the parties and the subject matter contained in these Terms of Service, provided that, if legally permitted, the Receiving Party will give the Disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment.


7.    Term and Termination


a.    “Term”.  The Terms of Service will commence on the Effective Date and continue for the Term.  The “Term” means the period for which you have ordered and paid for access and use of the Services.  The Term shall auto-renew for successive one (1) year periods unless either party notifies the other party, as set forth in this Section 7 and Section 11, of termination at least sixty (30) days prior to the end of the then-current Term.


b.    Unless otherwise agreed in an applicable Fee Schedule, either party may terminate the Terms of Service at any time by with 30 days advance notice.


c.    The Terms of Service will terminate immediately in the event that you materially breach any provision of the Terms of Service.


d.    Upon termination or expiration of the Terms of Service for any reason, all licenses granted to you with respect to the Services shall immediately terminate and you will immediately discontinue all use of the Services and pay to Pinpoint any and all amounts due and payable under the Terms of Service.


e.    All terms that by their nature should survive termination, including, but not limited to, confidentiality obligations, limitations of liability, and indemnification, shall so survive.


8.    Representations and Warranties


a.    Pinpoint represents and warrants to you as follows:


1.    Pinpoint is duly organized and in good standing under the laws of its organizational jurisdiction and that its authorized to enter into the Terms of Service; and


2.    Pinpoint complies with all applicable United States federal and state laws and regulations in connection with its provision of the Services to you.


b.    You represent and warrant as follows:


1.    Merchant is duly organized and in good standing under the laws of its organizational jurisdiction and you are authorized to bind Merchant to the Terms of Service by virtue of your use of the Services;


2.    Merchant complies with all applicable federal and state, local, and foreign laws and regulations in connection with your use of the Services;


3.    All Authorized Users are at least 18 years of age, may access the Services;


4.    You will maintain the security of your Pinpoint account and passwords and acknowledge that Pinpoint is not responsible or liable for the actions of any individuals who misuse or misappropriate your account and password.  Further, you agree to notify us immediately of any unauthorized use of your Pinpoint account or any other breach of security;


5.    You are the owner of, or otherwise have the right to provide to Pinpoint, all Merchant Data, including all Consumer Data, for the purposes of the Terms of Service;


6.    You represent, warrant and covenant that your processing of Merchant Data, including the disclosure of the Consumer Data to Pinpoint and for Pinpoint’s processing of such Consumer Data in accordance with the Terms of Service and our Privacy Policy, complies with all applicable laws, rules, and regulations, including, but not limited to, the CCPA;  


7.    You represent, warrant and covenant that you will have made or obtained (and shall maintain) any and all disclosures, consents, permits, approvals, registrations and waivers necessary or appropriate for the disclosure of the Consumer Data to Pinpoint and for Pinpoint’s processing of such Consumer Data in accordance with these Terms of Service and our Privacy Policy.; 


8.    You maintain a public consumer privacy policy that details your data collection, usage and disclosure practices, including as it relates to your use of the Services; and


9.    You will not make available via the Services any Merchant Data, including any Consumer Data, that is associated with individuals under the age of 18, is associated with non-U.S. persons or is subject to HIPPA compliance restrictions.


c.    EXCEPT AND EXPRESSLY PROVIDED IN THE TERMS OF SERVICE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.  PINPOINT SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATED TO THE SERVICES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  WITHOUT LIMITATION, PINPOINT DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, UNINTERRUPTABILITY, FUNCTIONALITY, RELIABILITY, OR SPEED OF DELIVERY OF THE SERVICES.


9.    Indemnification


a.    Pinpoint will defend at its expense any suit brought against you, and will pay any settlement Pinpoint makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that: (i) any portion of the Services infringes, misappropriates or violates any third party intellectual property rights; or (ii) Pinpoint breached any of its representations or warranties hereunder.  If any portion of the Services becomes, or in Pinpoint’s opinion is likely to become, the subject of a claim of infringement, Pinpoint may, at Pinpoint’s option: (A) procure for you the right to continue using the Services; (B) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (C) modify the Services so that it becomes non-infringing; or (D) terminate the Terms of Service and refund any prepaid but unused fees paid by you to Pinpoint for the remainder of the Term then in effect, and upon such termination, you will immediately cease all use of the Services.  Notwithstanding the foregoing, Pinpoint shall have no obligation under this Section 9(a) or otherwise with respect to any infringement claim based upon: (x) any use of the Services by you not in accordance with the Terms of Service or as specified in the Documentation; (y) any use of the Services by you in combination with other products, equipment, software or data not supplied by Pinpoint; or (z) any modification of the Services by you or any person other than Pinpoint or its authorized agents at the direction of Pinpoint (collectively, “Exclusions”).  This Section 9(a) states Pinpoint’s entire liability and your sole and exclusive remedy for the claims and actions described herein.


b.    Merchant will indemnify and hold Pinpoint, its Partners, its and their third party service providers, investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the “Pinpoint Parties“) harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, including reasonable attorney’s fees, resulting from any claim (including third party claims), suit, action or proceeding against a Pinpoint Party, resulting from or arising out of or in connection with: (i) an Exclusion; or (ii) any breach by Merchant of any representation or warranty under the Terms of Service.


c.    Any party that is seeking to be indemnified under the provisions of this Section 9 (an “Indemnified Party”) must: (i) promptly notify the other party (the “Indemnifying Party”) in writing of any third-party claim, suit, or action for which it is seeking an indemnity hereunder; (ii) give the Indemnifying Party sole control over the defense of such claim, suit or action and any related settlement negotiations; and (iii) cooperating and, at Indemnifying Party’s reasonable request and expense, assisting in such defense.


10.    Limitation of Liabilities


A.    UNDER NO CIRCUMSTANCES SHALL CUSTOMER OR THE PINPOINT PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES.


B.    THE MAXIMUM AGGREGATE LIABILITY OF CUSTOMER AND THE PINPOINT PARTIES ARISING IN CONNECTION WITH THE TERMS OF SERVICE SHALL BE LIMITED TO THE GREATER OF (I) $100 OR (2) THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM.


c.    THIS SECTION 10 DOES NOT LIMIT EITHER PARTY’S OBLIGATION TO PAY ALL DAMAGES, REGARDLESS OF TYPE, AWARDED AGAINST THE OTHER PARTY IN ANY CLAIM, PROCEEDING, OR SUIT THAT THE PARTY IS OBLIGATED TO INDEMNIFY AGAINST UNDER SECTION 9.


d.    You agree that Pinpoint has set its prices and entered into the Terms of Service in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties, and that they form an essential basis of the bargain between the parties.


11.    Other


a.    Entire Agreement.  The Terms of Service constitute the entire agreement between the parties and supersedes any prior agreement, term, or representation concerning the subject matter of the Terms of Service.  If any provision of the Agreement is held unenforceable or invalid, the remaining provisions shall nevertheless be binding upon the respective parties hereto with the same effect as though the invalid or unenforceable provision was deleted.  No delay by either party in the enforcement of, or failure to enforce, any provision or right hereunder shall operate as a waiver of such right.


b.    Assignment.  Neither party may assign these Terms of Service, in whole or in part, without the other party’s written consent; provided, however, that Pinpoint may assign these Terms of Service without such consent in connection with any merger, consolidation, any sale of all or substantially all of its assets, subject to all of the terms of these Terms of Service.  Any attempt to assign these Terms of Service other than in accordance with this provision shall be null and void.


c.    Governing Law.  The Terms of Service shall be governed by and interpreted in accordance with the laws of California, without reference to conflict of laws principles.  The United Nations Convention for the International Sale of Goods shall not apply.


d.    Arbitration. 


i.    You and Pinpoint agree to resolve any disputes between us in accordance with this Section 11(d). If you believe that Pinpoint has not adhered to the Terms of Service or you have any dispute with Pinpoint, please contact Pinpoint using the contact information provided herein.  We will do our best to address your concerns and each party agrees to attempt to resolve any disputes with the other amicably.


ii.    Except as provided herein, you and Pinpoint agree that we will resolve any disputes between us that we cannot resolve as provided above through binding and final arbitration instead of through court proceedings.  All such controversies, claims, counterclaims, or other disputes arising between you and Pinpoint relating to the Services or the Terms of Service (each a "Claim") shall be submitted for binding arbitration in accordance with the rules of the JAMS.  If JAMS is not available to arbitrate, the parties shall agree to select an available alternative dispute resolution provider (“ADR Provider”) and the rules of such provider shall govern all aspects of the arbitration.  The arbitration will be heard and determined by a single arbitrator.  The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction.  The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. 


iii.    For any claim where the total amount of the award sought is $10,000 or less, the ADR Provider, you and Pinpoint must abide by the following rules: (a) the arbitration will be conducted solely based on written submissions; and (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.  If the claim exceeds $10,000, the right to a hearing will be determined by the applicable ADR Provider rules, and the hearing (if any) will be held in a location reasonably convenient to both parties, unless the parties agree otherwise on a specific location.


iv.    If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Pinpoint will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive.  In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.


v.    This arbitration agreement does not preclude you or Pinpoint from seeking action by federal, state, or local government agencies.  You and Pinpoint also have the right to bring qualifying claims in small claims court.  In addition, you and Pinpoint retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this arbitration agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this arbitration agreement.


vi.    Neither you nor Pinpoint may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim.  Claims may not be arbitrated on a class or representative basis.  The arbitrator can decide only your and/or Pinpoint’s individual Claims.  The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.


vii.    If any provision of this Section 11(d) is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect.  No waiver of any provision of this Section 11(d) will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement.  Such a waiver shall not waive or affect any other portion of the Terms of Service.  This Section will survive the termination of the Terms of Service or your relationship with Pinpoint.


viii.    THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN JAMS RULES OR THE RULES OF AN ADR PROVIDER.


e.    Notice.  Except as otherwise provided, notices under the Terms of Service shall be delivered by to the other party at such addresses as set forth below, and will be deemed to have been given as of the date delivered:


1.    Customer:


a.    The applicable email addresses associated with your Pinpoint account


2.    Pinpoint:


a.    legal@poinpoint.ai


b.    20 N. San Mateo Drive, Suite 4
San Mateo, CA 94401


f.    Waiver; Severability.  Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  If any provision of the Terms of Service is held unenforceable or invalid, the remaining provisions shall nevertheless be binding upon the respective parties hereto with the same effect as though the invalid or unenforceable provision was deleted.  No delay by either party in the enforcement of, or failure to enforce, any provision or right hereunder shall operate as a waiver of such right.


g.    Independent Contractors.  The relationship of the parties is that of independent contractors and nothing contained in the Terms of Service shall be construed to make either party an agent, partner, joint venturer, or representative of the other for any purpose.


h.    Force Majeure.  If either party is unable to perform any of its obligations hereunder due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform.