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Refersion™ Terms of Service

Last updated: July 1, 2022

These Terms of Service (these “Terms”) are part of the  agreement (“Agreement”) between Refersion Inc., a New Jersey corporation (“Refersion”), and the business entity agreeing to them (“you” or “Customer”) and govern your use of the Services.  

The Agreement is effective as of the date you register for an online account with Refersion or the date you enter an Order Form with Refersion incorporating these Terms (the “Effective Date”).  If you are accepting the Agreement on Customer’s behalf, you represent and warrant that (i) you have full legal authority to bind Customer to the Agreement; (ii) you have read and understand the Agreement; and (iii) you agree, on Customer’s behalf, to the Agreement.

 

The “Agreement” consists of these documents, in order of precedence: 

  1. for Merchants only, your “Merchant Terms,” meaning either: 
    1. your Order Form (defined below); or
    2. the Professional Plan pricing and limits viewable in your Account through the Services.
  2. these Terms;
  3. Refersion’s Privacy Policy (“Privacy Policy”), Acceptable Use Policy (“AUP”) (collectively, “URL Terms”); and 
  4. any other standard policies or community guidelines made available by the Services.

The terms of the Agreement vary depending on your role in using the Services, as Refersion’s Customers include both Merchants and Affiliates (each defined below).  You should carefully review all of provisions of these Terms that apply to your role in using the Services.  

This Agreement is between Customer and Refersion.  It only applies to your relationship with Refersion, which is independent of your relationship with any other merchant, affiliate, or customer.  Any Merchant-Affiliate relationship, including any payment obligations arising therefrom, is governed separately by the contract between the Merchant and the Affiliate (written or otherwise).  

Refersion is not a party to any Merchant-Affiliate contract, and cannot compel a Merchant or Affiliate to perform its obligations under it.  Even if a Merchant and Affiliate are both enrolled in Refersion Pay, the Services’ role is solely to process payments authorized by the Merchant to the Affiliate using payment account information supplied by the respective parties.

Finally, Refersion is one of several affiliated companies offering e-commerce solutions under the corporate umbrella of Assembly Intermediate LLC (“Assembly”).  Parts of the Agreement address how Refersion interacts with other Assembly companies (collectively, “Assembly Businesses”).  

  1. DEFINITIONS.  The following capitalized terms have the following meanings in the Agreement:
    1. Action Deadline” means ninety (90) days after a pending Transaction is first recorded by the Services, unless a different deadline in specified in Merchant’s Order Form.  
    2. Affiliate Sales Revenue” means the total amount of proceeds received from the sale of products or services by a Merchant attributed to Merchant’s Affiliates by and through the Services, including any shipping and handling charges and/or processing fees, but excluding any discounts and applicable taxes.  
    3. Affiliate” means an individual or business registered on the Services as an Affiliate of a Merchant which is compensated by the Merchant for qualified sales, leads, clicks, or other measurable action on Merchant’s point(s) of sale.
    4. Aggregate Data” means information relating to a group or category of users, including information derived from Customer Data, that is irrevocably anonymized to remove any Customer-identifying or individual-identifying information.  For clarity, Aggregate Data can never include any information (i) reasonably associable with any individual or household, (ii) about Customer’s Authorized Users, Affiliates or Visitors or (iii) otherwise identifiable as originating from Customer.
    5. Authorized User” means any individual who uses the Services on Customer’s behalf or through Customer’s Account, whether with, without, or in excess of the authorization granted by Customer.
    6. Customer Data” means data processed through the Services by Customer, such as sales data and information, pricing, shipping costs, and other similar information, data from Third Party Platforms (as applicable) and data from Customer’s Visitors and Authorized Users.
    7. Order Form” means an order for Services on a subscription basis executed by Merchant and Refersion.
    8. Documentation” means any documentation provided to Customer by Refersion in connection with the Agreement.
    9. Excluded Privacy Laws” means: 
      1. any other law or regulation, solely to the extent of its application of (A) heightened security or privacy standards or requirements for a particular type or category of data vis-à-vis (B) its generally applicable security or privacy standards or requirements, such as “Sensitive Personal Data” as defined in the General Data Protection Regulation (GDPR) and “Sensitive Personal information” as defined in the California Consumer Privacy Act (as amended).
      2. The Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), the Family Educational Rights and Privacy Act (FERPA); and 
    10. Merchant” means a Customer contractually obligated to pay a commission, referral fee or similar compensation to an Affiliate for qualified sales, leads, clicks, or other measurable action by a visitor generated or referred by such Affiliate to the Merchant’s point(s) of sale.  
    11. Monthly Subscription Charges” means the percentage of Affiliate Sales Revenue occurring during a particular month specified in Customer’s Order Form, based on the date Customer approves a Transaction, not the date the Transaction occurred.
    12. Refersion Associates” means Refersion and Assembly Businesses’ officers, directors, shareholders, parents, subsidiaries, agents, representatives, advisors, successors and assigns.  
    13. Refersion Pay” means the Refersion Pay services made available to Customer, applicable solely to Transactions involving Merchants and Affiliates enrolled in Refersion Pay.
    14. Services” means the Refersion platform, analytics, information, applications, websites, payments functionality and other products and services.
    15. Transaction” means a Visitor’s purchase or other interaction with a Merchant’s products and services, associable with an Affiliate through use of the Services.
    16. Visitors” means individuals or businesses who interact with the Services by virtue of Customer’s use of the Services (through links or other software).  
  2. THE SERVICES.  
    1. Account Terms.  In order to access most features of the Services, you must register for a Refersion account (“Account”) by providing your entity’s full legal name, current address, phone number, a valid email address and any other information Refersion may require.  You may only register on behalf of a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.  Refersion may reject an application for an Account for any reason, in its sole discretion.
    2. Use of the Services.  During the Term and provided that the Agreement has not been terminated, and in consideration of the payment of the Fees, you may access the Services for the purpose of using Services pursuant and subject to the terms of the Agreement and any applicable Order Form.
    3. Documentation.  The Documentation may be reproduced solely as necessary to support use of the Services by you or your Authorized Users.
    4. Access Rights.  Refersion may suspend or terminate any Account if Refersion determines, in its sole discretion, that the goods or services offered via an outside store, or the materials uploaded or posted to an outside store, violate the AUP or these Terms.  Refersion will make reasonable efforts to promptly notify Authorized Users of the suspension.  Refersion may provide the Services to Customer’s competitors, and make no promise of exclusivity in any particular market segment.  
  3. ORDERS & FEES.
    1. Fees.  Merchant must pay Refersion the fees for the access to and use of the Services (“Fees”) specified in the Merchant Terms.  Fees may be flat or based on Monthly Subscription Charges.  The Merchant Terms may also specify other Fees, such as one-time fees.  
    2. Affiliate Sales Revenue.  Monthly Subscription Charges are based on Affiliate Sales Revenue calculated from approved Transactions.  Merchant agrees to approve, deny or otherwise action all pending Transactions no later than the Action Deadline.  Any pending Transactions not actioned by Merchant prior to the Action Deadline will be automatically deemed approved by the Services, and are dated of the Action Deadline for the purposes of calculating Affiliate Sales Revenue without further action by Merchant.  Merchants upgrading from a flat-fee plan to a variable subscription plan (which is based on Affiliate Sales Revenue) may need to action historical Transactions which, in turn, may result in additional payments owed to Affiliates and Refersion. 
    3. Currency.  For Fees purposes, any Affiliate Sales Revenue paid in a currency other than U.S.  Dollars is automatically converted to the applicable value in U.S.  Dollars at the time Refersion invoices Customer for Fees.  The Services will continue to display Affiliate Sales Revenue in the transaction currency for all other purposes, such as calculating Affiliate commission amounts.
    4. Payment of Fees.  Merchant authorizes Refersion to charge an amount equal to the amount of the Fees on a monthly basis (or on such dates as the Order Form provides), and any additional amounts as permitted by the Agreement, to the payment card and/or bank account specified in the Order Form, for the duration of each Term.  Merchant hereby agrees to keep such valid payment card and/or bank account in effect with sufficient credit limit to enable Refersion to charge the Fees every month, quarter or other period of each Term, as applicable, and not to challenge such charges or to request reversal of such charges.  Refersion will not be required to refund any Fees, except in the event of Refersion’s fraud, gross negligence or willful misconduct.
    5. Taxes.  All Fees are exclusive of, and Merchant is responsible for, applicable sales, use, excise, export or other applicable taxes, except for taxes on the net income of Refersion.  Refersion may add any such taxes to the applicable Fees.
  4. THIRD PARTY CONTENT AND SERVICES.
    1. Customer may configure the Services to integrate or interact with third-party data or platforms (“Third Party Platforms”), including via APIs or customized software connections.  Further, depending on a Merchant’s existing ecommerce configuration, certain functionalities of the Services may only function accurately if Merchant and/or its Affiliates integrate Third Party Platforms.  Though the Services may describe some Third Party Platforms as “Partners,” Refersion does not endorse, warrant or bear responsibility for any Third Party Platform. 
    2. It is Customer’s responsibility to analyze and interpret the terms and conditions of any third party offerings Customer uses in connection with the Services (collectively, “Third Parties”).  Customer acknowledges that Refersion has no control over, and are not a party to, such terms.  Refersion makes no endorsement of such Third Parties, nor any representation or warranty regarding anything that takes place between Customer and any such Third Parties.  Third Party Platforms are independent from and not controlled by Refersion, even if, for example, a Refersion link or logo appears on a platform linked from the Services.  
    3. Customer agrees and acknowledges that Refersion does not own or operate Third Party Platforms and is not responsible for the operations, security, or performance of such Third Party Platforms or Customer Data processed thereby.  
    4. By using any Third Party Platforms in connection with the Services:
      1. Customer authorizes Refersion to collect, analyze, and use data collected by or via Third Party Platforms, including, without limitation, Visitor data, solely as consistent with the terms of the Agreement.  
      2. Customer hereby waives and releases Refersion from any and all claims or claim rights arising from or related to (A) Third Party terms and (B) Customer’s use of any Third Party Platforms, including if accessed or used via the Services.
  5. CUSTOMER DATA & PRIVACY.
    1. Use of Customer Data.
      1. License Grant.  Customer grants Refersion a non-exclusive right and license to use, copy, reproduce, modify, adapt, publish, and display the Customer Data solely to provide the Services.  
      2. Rights to Use.  Customer represents and warrants that: 
        (A) Customer has all necessary rights, consents and approvals, to grant Refersion the access and use rights to Customer Data granted herein;
        (B) all Customer Data was collected by Customer in accordance with Customer’s privacy policy, applicable Third Party Platform policies and all applicable laws.
        (C) no Customer Data violates the privacy or intellectual property rights of any third party.
    2. Data Security.  Refersion has implemented and maintains industry-standard measures, procedures and policies designed to safeguard the confidentiality, integrity and security of the Services and Customer Data.  Customer recognizes and agrees that hosting and transmitting data online inherently involves risk of unauthorized disclosure or exposure that no Refersion measures can fully eliminate.  Customer agrees that, in accessing and using the Services, Customer assumes such risks.  
    3. Data Accuracy.  Refersion is not responsible or liable for the accuracy of data uploaded to the Services by Customer, such as Customer Data and any other data uploaded by Authorized Users.  In addition, except for calculations and payments made solely through Refersion Pay, Refersion is not responsible or liable for any Affiliate payment calculation errors made in reliance on data generated or APIs made available by the Services.
    4. Data Retention.  Refersion may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 or more days.  Additionally, within 90 days of the termination of the Agreement (or within 30 days of Customer’s written request), Refersion will delete any Customer Confidential Information, including all Customer Data.
    5. Excluded Data.  Unless otherwise provided by an Order Form for Refersion Pay, Customer represents and warrants that Customer Data does not and will not include, and Customer has not and will not process, any data through the Services that is subject to Excluded Privacy Laws (“Excluded Data”).  Customer acknowledges and agrees that: 
      1. the Services may not provide protections required by Excluded Data Laws or otherwise applicable Excluded Data; and 
      2. the Services are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data unless otherwise noted by Refersion.
    6. Aggregate Data.  Notwithstanding any provision of the Agreement to the contrary, Refersion may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
  6. CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS.
    1. Acceptable Use.  Customer and its Authorized Users may not: use the Services or Customer Data for service bureau or time-sharing purposes or in any other way allow third parties, including Customer’s Affiliates, to exploit the Services without using an Account; provide Account passwords or other access information to any third party; share non-public Services features or content with any third party; use the Services or Customer Data to copy or build a product using similar ideas, features, functions or graphics (whether competitive with Refersion or not); violate the AUP; or use the Services to send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful or tortuous material, including material that is harmful to children or violates third-party privacy rights.  
    2. Unauthorized Access.  Customer is responsible for all actions taken by its Accounts and must take reasonable steps to prevent unauthorized access to the Services.  Customer must notify Refersion immediately of any known or suspected unauthorized use of the Services, any including any security breach affecting its Services access credentials.
    3. Compliance with Laws.  In its use of the Services, Customer must comply with all applicable laws and regulations, such as laws (i) governing the sale of goods and services in the jurisdiction(s) where they are sold, delivered, conveyed or otherwise distributed, and (ii) applicable to the protection of Customer Data.  In addition, Customer must comply with all obligations in its agreements with Affiliates.
  7. IP AND FEEDBACK.
    1. IP Rights to the Services.  Refersion retains all right, title, and interest in and to the Services, such as all software, system software and applications used to provide the Services, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the Services.  The Agreement does not grant Customer any intellectual property rights in or to the Services or any of its components.  Customer understands and agrees that the Services and its components are protected by copyright and other applicable law.
    2. Feedback.  “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Refersion’s products or services.  Refersion owns all Feedback.  Refersion may use or incorporate Feedback without compensating or crediting Customer.  
  8. CONFIDENTIAL INFORMATION.  
    1. As used in this Section 8, “Discloser” means a party to the Agreement disclosing Confidential Information to the other party to the Agreement (as the “Recipient”).  
      “Confidential Information” means Customer Data; any information the Discloser marks “confidential” or that would otherwise reasonably be understood to be confidential in the context of its disclosure; Documentation, any Order Form and any communications between Refersion and Customer in relation to the Services.  Confidential Information excludes information known to the Recipient without obligation of confidentiality to the Discloser at the time of disclosure; information independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information; information known publicly, before or after disclosure, other than as a result of the Recipient’s improper action or inaction; information approved for release in writing by the Discloser; and Aggregate Data.  
    2. Nondisclosure.  Recipient may only use Discloser’s Confidential Information in furtherance of its obligations and rights hereunder (the “Purpose”).  Recipient may not disclose Confidential Information to any other third party without Discloser’s prior written consent.  Recipient must protect Discloser’s Confidential Information with the same degree of care Recipient uses to protect its own confidential information of similar nature and importance, but in no event less than reasonable care.  Recipient must promptly notify Discloser of any known or reasonably suspected misuse or misappropriation of Discloser’s Confidential Information.  
    3. Permitted Disclosure.  Notwithstanding the foregoing, Recipient may disclose Discloser Confidential Information as required by applicable law or by proper legal or governmental authority, provided that it has given Discloser prompt notice of such legal process (if permitted) and reasonably cooperated with Discloser in any effort to seek a protective order or otherwise contest the compelled disclosure.
    4. Injunction.  Recipient agrees that any breach of its Section 8 obligations would cause Discloser irreparable injury, for which money damages cannot provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach.
    5. Termination.  The obligations of Section 8(b) above (Nondisclosure) will terminate five (5) years after the date of disclosure.  Upon termination of the Agreement, Refersion will follow the Data Retention provision above and Customer will destroy all Refersion Confidential Information in its possession.
  9. REPRESENTATIONS & WARRANTIES.
    1. From Refersion.  Refersion represents and warrants that:
      1. it has and will maintain the full power and authority to grant the rights granted in the Agreement without the further consent of any third party; and 
      2. to the best of Refersion’s knowledge, the Services do not and will not infringe the intellectual property rights of any third party.
    2. Infringement Remedy.  Solely with respect to Section 9(a)(ii) and without regard to Refersion’s knowledge of infringement:
      1. Any alleged or actual infringement caused by the use of the Services in combination with hardware or software not provided by Refersion does not constitute a breach.
      2. In the event of a breach, Refersion will, at its own option and expense, promptly take any of these actions: (a) secure for Customer the right to continue using the Services; (b) replace or modify the Services to make them non-infringing; or (c) terminate the infringing features of the Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination.  
      3. Along with Customer’s right to terminate for breach, the preceding sentence states Refersion’s sole obligation and liability, and Customer’s sole remedy, for breach of Section 9(a)(iii) and for potential or actual intellectual property infringement by the Services.
    3. From Customer.  Customer represents and warrants that: 
      1. it has the full right and authority to enter into, execute, and perform its obligations and grant the licenses specified in the Agreement; 
      2. it has not provided any inaccurate information about itself to or through the Services; 
      3. it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; 
      4. it is in full compliance with all laws and regulations applicable to its business; 
      5. if Customer is a Merchant, it has entered into a valid and enforceable agreement with each Affiliate with respect to which it intends to use the Services; and 
      6. no other contract, agreement, undertaking or obligation of Customer, such as Customer’s agreements with Affiliates, prevents or restricts in any way Customer’s disclosure of the Customer Data or the licenses and use of the Services contemplated hereby.
    4. Warranty Disclaimers.  Except as provided in Section 9(a) above, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO USAGE COMMITMENT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  
  10. INDEMNIFICATION.  Refersion agrees to indemnify and hold harmless Customer and its officers, directors, agents, shareholders, and independent contractors from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorneys’ fees and related court costs and expenses) (collectively, “Damages”) directly relating to or directly arising out of the violation or infringement of the Services on any third party’s intellectual property rights, provided, however, that this obligation to indemnify will not apply if the infringement arises as a result of Customer’s or its users’ unauthorized use and/or alteration of the Services.  Customer agrees to indemnify and hold harmless Refersion and its officers, directors, employees, agents, shareholders, and independent contractors from and against any Damages relating to or arising out of Customer’s use of the Services in violation of this Agreement. 
  11. LIMITATION OF LIABILITY.
    1. Dollar Cap.  EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE GREATER OF (A) $5,000; OR (B) THE FEES ACTUALLY PAID BY CUSTOMER TO REFERSION FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO LIABILITY AROSE.
    2. Exclusion of Consequential Damages.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT.
    3. Clarifications & Disclaimers.  The limits in this Section 11 apply: (i) to liability for negligence; (ii) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) regardless of the foreseeability of the damages or any advance notice of their possibility; and (iv) even if these remedies fail of their essential purpose.  If applicable law limits the application of the provisions of this Section 11, liability will be limited to the maximum extent permissible.  For the avoidance of doubt, Refersion’s liability limits in this Section 11 extend to Refersion Associates.
  12. TERM AND TERMINATION.
    1. Term.  The term of the Agreement (the “Term”) commences on the Effective Date and continues (i) for the initial term specified in the Order Form or (ii) if no Order Form applies, until terminated by either party.  The Term will renew automatically for successive terms equal to the initial term specified in the Order Form, unless either party provides notice of non-renewal to the other party thirty (30) or more days before the renewal date.
    2. Termination.  Either party may terminate the Agreement and any Order Form: (i) for cause, if the other party fails to cure any material breach of the Agreement (including any failure to pay Fees) within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) if the other party seeks protection under any bankruptcy, receivership or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).  Nothing in this Section limits Refersion’s ability to immediately suspend the Agreement or any Order Form immediately upon any breach of Section 6 of the Agreement.  
    3. Termination of Affiliate.  Only if you are an Affiliate, Refersion may terminate the Agreement for any reason at any time.  Refersion’s termination of an Affiliate has no effect on any contractual relationship between a Merchant and an Affiliate.
    4. Effects of Termination.  Upon termination of the Agreement, Refersion will discontinue Customer’s access to the Services, Customer will cease all use of the Services, and Customer will promptly delete, destroy, or return all copies of the Documentation in its possession or control.  Refersion may also disable links and reporting and payment functionality with respect to Affiliates of Customer, effective immediately, in its sole discretion.  The provisions of the Agreement intended to survive termination or expiration of the Agreement shall so survive.
  13. PUBLICITY. With Customer’s prior written consent (not to be unreasonably withheld), Customer will permit Refersion to use Customer’s name and trademarks and service marks to identify Customer as Refersion’s customer on the Website and in sales and marketing materials and activities.  
  14. GENERAL.
    1. Modifications.
      1. The Services.  Refersion may make commercially reasonable changes to the Services from time to time.  Refersion will inform Customer if Refersion makes a material change to the Services that has a material, adverse impact on Customer’s use of the Services.
      2. These Terms.  Refersion may change these Terms from time to time and will post any such changes to the URL where these Terms are available and updating the “Last Updated” date at the top of these Terms.  Any material changes will only take effect as of (i) Customer’s next term, as specified in the Order Form or (ii) the “Last Updated” date above, if no Order Form specifying a term is in effect.  Customer’s continued use of the Services after such changes take effect will constitute its acceptance of the changes. 
      3. URL Terms.  Refersion may change the URL Terms from time to time and will notify Customer if any such change is material.  Material changes to the URL Terms will become effective 30 days after notice is given, except that changes that are required by applicable law may become effective immediately.  
    2. Independent Contractors.  The parties are independent contractors and will so represent themselves in all regards.  Neither party is the agent of the other, and neither may make commitments on the other’s behalf.  The parties agree that no Refersion employee or contractor will be an employee of Customer.
    3. Notices.  Refersion may send notices under the Agreement to Customer’s email address(es) in Customer’s Account, and such notices will be deemed received 24 hours after they are sent.  Customer may send notices under the Agreement to Refersion, and such notices will be deemed received 72 hours after they are sent in writing and delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid) addressed to Refersion Inc., 9696 Culver Blvd., Suite 308 Culver City CA 90232, Attn: Refersion Legal, with a copy sent by email to [email protected]
    4. Force Majeure.  No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
    5. Assignment & Successors.  Customer may not assign the Agreement or any of its rights or obligations hereunder without Refersion’s express written consent.  Except to the extent forbidden in this Section 14(d), the Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
    6. Severability.  To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the Agreement invalid or otherwise unenforceable in any respect.  In the event that a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
    7. No Waiver.  Neither party waives any rights under the Agreement except by an express written waiver from an authorized representative.  No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
    8. Choice of Law & Jurisdiction.  The Agreement is governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.  The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the Los Angeles County, Los Angeles.
    9. Conflicts.  In the event of a conflict between these Terms and any Refersion policy posted online (such as the Privacy Policy), these Terms control except to the extent any such policy specifically states that it controls over these Terms.  In the event of a conflict between the Merchant Terms and any other part of the Agreement, the Merchant Terms control.
    10. Interpretation.  A reference to writing or written includes e-mail.  The section headings in the Agreement are intended solely for convenience of reference and have no effect in the construction or interpretation of the Agreement.
    11. Technology Export.  Customer will not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Refersion or otherwise remove it from the United States except in compliance with all applicable U.S.  laws and regulations.  Without limiting the generality of the foregoing, Customer will not permit access, use or export the Services in or to a person or country subject to a United States embargo.
    12. Entire Agreement.  The Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter.  Neither party has relied upon any such prior or contemporaneous communications.
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