TERMS OF SERVICE

TERMS OF SERVICE

Updated: July 2023

TavaHatz, LLC. and its affiliates (collectively “TavaHatz,” “we” or “our”) provide URL shortening, custom-branded link, link management, QR code and analytics products and services to our users (collectively, the “TavaHatz Services”). Please read these Terms of Service (the “Agreement”) carefully, as they govern your access to and use of the TavaHatz Services and constitute a binding legal agreement between you and TavaHatz. If you accept this Agreement or use the TavaHatz Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” “your” or “Customer” will refer and apply to that company or other legal entity. If you have been granted access to and use of the TavaHatz Services by and on behalf of the primary account holder, whether directly or through an administrator, you also agree to abide by this Agreement. In addition to this Agreement, your use of the TavaHatz Services is governed by the TavaHatz Privacy Policy, and the Acceptable Use Policy.

YOU ACKNOWLEDGE AND AGREE THAT, BY CREATING A TAVAHATZ PAID ACCOUNT (“ACCOUNT”), OR ACCESSING OR USING THE TAVAHATZ SERVICES AND APPLICATION PROGRAM INTERFACES (“API”), YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TAVAHATZ ACCEPTABLE USE POLICY. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE TAVAHATZ SERVICES.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER AS DESCRIBED IN SECTION 12.1 BELOW. YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

1. SCOPE & MODIFICATIONS

1.1 Modifications. TavaHatz reserves the right, in its sole discretion, to modify or replace this Agreement at any time. If we modify this Agreement, we will post the modification on our site and update the “Last Updated” date at the top of the Terms of Service or provide you with notice of the modification in the TavaHatz platform. Any change to this Agreement will be effective as of the Last Updated Date in at the top of this page. By continuing to access or use the TavaHatz Services after the Last Updated Date, you are indicating that you agree to be bound by the modified Agreement. You agree that it is your responsibility to check this Agreement periodically for changes and that your use of the TavaHatz Services following the posting of any changes to this Agreement constitutes acceptance of those changes. If the modified Agreement is not acceptable to you, your only recourse is to cease using the TavaHatz Services.

1.2 Service Changes. TavaHatz may add, remove, suspend, discontinue, modify or update the TavaHatz Services at any time, at its discretion. After the effective date of such a change, TavaHatz shall bear no obligation to run, provide or support legacy versions of any affected TavaHatz Services.

1.3 Customer Support. TavaHatz will provide necessary training and ongoing support to the Customer to enable them to use the Services.

2. PAID ACCOUNTS

2.1 Fees. You agree to pay TavaHatz all applicable fees for the tier of TavaHatz Services according to your selection. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.

2.2 Subscription Period. Paid account plans will be charged the rate stated at the time of initial purchase on a recurring basis corresponding to the term of your subscription until you cancel. You may cancel your paid account subscription at any time, however, unless required by law, no refunds or credits will be provided for any early termination or for any non-use of the TavaHatz Services for the remainder of the term. TavaHatz reserves the right to update, change, modify or terminate your subscription benefits at any time in its sole discretion.

2.3 Payment. You will pay TavaHatz on the payment interval selected. If not otherwise specified, payments will be due immediately. You authorize TavaHatz to charge you for all applicable fees on a recurring basis using your selected payment method through TavaHatz’s online payments platform. By providing a saved payment method (“Payment Method”) in your account, you expressly acknowledge and authorize TavaHatz (or our third-party online payment processor) to charge you on a recurring basis corresponding to the term of your subscription unless you cancel your paid account subscription. You are responsible for any and all fees charged to your Payment Method. You will provide complete and accurate billing and contact information to TavaHatz. TavaHatz may make changes to the offered Payment Method from time to time. It is your responsibility to update your payment information if necessary due to such changes. TavaHatz may suspend, downgrade or terminate the Services if Fees are past due. Unpaid Fees are subject to a finance charge of one percent (1.5%) per month (18% per annum), or the maximum permitted by law, whichever is lower. In addition, TavaHatz will be entitled to recover its expenses for collection, including reasonable attorneys’ fees. Failure to pay Fees or Renewal Fees when due may lead to termination, cancellation or suspension of Services. FOR THE AVOIDANCE OF DOUBT, TAVAHATZ MAY SUBMIT PERIODIC CHARGES CORRESPONDING TO THE TERM OF YOUR SELECTED SUBSCRIPTION WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU AFFIRMATIVELY CANCEL YOUR SUBSCRIPTION SERVICES OR NOTIFY TAVAHATZ THAT YOU WISH TO CHANGE YOUR PAYMENT METHOD INFORMATION.

2.4 Taxes. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”), and you are responsible for all Taxes resulting from this Agreement or your use of the TavaHatz Services. TavaHatz will invoice you for Taxes when required to do so by applicable law, and you agree to provide payment under the terms of the invoice. In the event you are required by law to deduct and withhold any Taxes on amounts payable under this Agreement, any amounts required to be withheld will be promptly deducted and timely remitted by you on behalf of TavaHatz to the appropriate taxation authority and you agree that you will provide TavaHatz with copies of all necessary documents (including but not limited to tax receipts received from the applicable tax authority) in order for TavaHatz to claim and receive a foreign tax credit in an amount corresponding to the amount withheld by you.

3. USE OF SERVICES

3.1 Use of TavaHatz Services. Subject to the terms and conditions of this Agreement and payment of all Fees due hereunder, TavaHatz grants you a non-exclusive, non-transferable, limited right to access and use the TavaHatz Services in accordance with our Acceptable Use Policy. For the avoidance of any doubt, you agree that you will not access the TavaHatz Services for competitive purposes or if you are a competitor of TavaHatz.

3.2 Access Credentials. TavaHatz shall provide you with non-transferable access credentials for the TavaHatz Services. You will safeguard all access credentials provided by TavaHatz and shall ensure the confidentiality and security thereof. If you are a corporate entity only your employees and authorized distributors (“Personnel”) may use the TavaHatz Services; (B) you will require your Personnel to comply with all Laws (as defined below) and the use restrictions set out in the Agreement; (C) you acknowledge that you will be fully responsible for any acts or omissions of your Personnel, whether authorized or unauthorized. TavaHatz may update, refresh or change the manner of accessing the TavaHatz Services at its discretion.

3.3 Compliance Monitoring. TavaHatz may monitor your use of the TavaHatz Services for compliance with the Agreement, and to ensure compliance with our Acceptable Use Policy. If TavaHatz observes usage of the TavaHatz Services that it believes are not in compliance with the Agreement, TavaHatz may (i) remove or disable any linked, codes, or other TavaHatz Services that are suspected of violating our Acceptable Use Policy or this Agreement. TavaHatz reserves the right to suspend your use of the TavaHatz Services without notice in the event that we believe, in good faith, the security of your TavaHatz account has been compromised or your TavaHatz account is being used for an unlawful purpose or any purposes that violates our Acceptable Use Policy. TavaHatz reserves the right to suspend your access to the Services or terminate this Agreement without notice for violation of the Agreement.

4. YOUR SERVICES AND CONTENT

4.1 Your Service. TavaHatz shall have no liability for any of your products, content or services (“Your Services”) accessed through or making use of the TavaHatz Services, or the use thereof by any end user or any of your or your affiliates’ customers, employees, officers, directors, agents, contractors, consultants, affiliates, or other representatives. You will not use the TavaHatz Services in any manner implying any partnership with, sponsorship by, or endorsement of Your Services by TavaHatz. You will not suggest or imply that TavaHatz is the author of or otherwise responsible for the views or content of Your Services. The TavaHatz Services shall not be used in connection with any Prohibited Content (defined in Section 5 below), or any activities where the use or failure of the TavaHatz Services could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on TavaHatz in any manner.

4.2 Your Content. You hereby grant to TavaHatz an irrevocable, perpetual, non-exclusive, sublicensable, transferable, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, distribute, create derivative works, alter or modify all URLs and other information provided by You to TavaHatz (“Customer Content”) in connection with the provision, operation and promotion of the TavaHatz Services and for other business purposes, including of TavaHatz’s group companies.

4.2.1. You are solely responsible for the content that you upload through TavaHatz Service, or transmit to or share with other users (collectively the “Customer Content”). You may not upload, transmit, or share Customer Content using the TavaHatz Service that you did not create or that you do not otherwise have permission to use. TavaHatz does not assert any ownership over Customer Content or other intellectual proprietary rights associated with your Customer Content. TavaHatz’s collection, use and sharing of personal information TavaHatz receives from you or third parties (including social media networks) is described in TavaHatz’s Privacy Policy.

5. INTELLECTUAL PROPERTY

5.1 Ownership. Except for Your Content and Your Services, you acknowledge and agree that TavaHatz is the sole and exclusive owner of all right, title and interest in and to the TavaHatz Services and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (“TavaHatz Materials”). Nothing in this Agreement or any other document shall be deemed to transfer ownership of any TavaHatz Materials. Except for the limited license rights expressly granted herein, no rights to TavaHatz Materials are granted hereunder and all rights in such TavaHatz Materials are reserved.

5.2 Feedback. If you provide feedback, request features, changes or tools, or otherwise provide comments relating to the Service or provide suggestions or ideas for improving the Service (“Feedback”), such Feedback will be fully assigned to TavaHatz without any obligation for separate compensation, and TavaHatz shall own all rights, title and interest to the Feedback and may, in its own discretion, elect to incorporate the Feedback into its Services.

5.3 General Restrictions. You and your Personnel will not, and will not permit any third party to: (i) access the Services or export data from the Services to create a service, software, documentation or data for a URL shortening, custom-branded link, link management, QR code and analytics products service other than TavaHatz or create shortened links or a service that is competitive with, substantially similar or confusingly similar to any aspect of the TavaHatz Services (including to benchmark the TavaHatz Services against any competing services); (ii) use, modify, display, perform, copy, disclose or create derivative works of the TavaHatz Services except as expressly permitted herein; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the TavaHatz Services, or use any other means to attempt to discover their source code except as expressly permitted herein; (iv) encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the TavaHatz Services to any third party; (v) transmit harmful, disabling or malicious code or devices, or infringing, defamatory, unlawful, tortious, deceptive, misleading, fraudulent, abusive, indecent or otherwise offensive content, phishing, spam, or content that contains someone’s personal information or violates a third party’s intellectual property, privacy or publicity rights or any other use or content that violates our Acceptable Use Policy (collectively “Prohibited Content”) through the TavaHatz Services; (vi) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the TavaHatz Services or related systems, including via robots, spiders and other electronic methods; and (vii) obscure, remove or alter any proprietary rights or other notices on the TavaHatz Services. Notwithstanding anything to the contrary herein, TavaHatz may, in its sole discretion, immediately revoke the grant of rights set forth in Section 3 if you breach or threaten to breach the restrictions in this Section or create other security or legal concerns. You agree that, in addition to any other remedies available to TavaHatz at law or in equity, TavaHatz will be entitled to seek injunctive relief to prevent the breach or threatened breach of your obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.

6. TERM AND TERMINATION

6.1 Term. This Agreement shall commence on the date that You accept this Agreement by purchasing a paid service tier (“Effective Date”) and will continue for the duration of the Term selected by You, unless otherwise terminated as permitted herein (the “Initial Term”). If your paid account is set to automatically renew, your account will thereafter automatically renew for additional terms of the same length as the Initial Term (“Renewal Term”), subject to your cancellation prior to the next billing cycle by canceling your subscription in your account in accordance with Section 6.2 below. (“Term” shall include both the Initial Term and any Renewal Term(s)).

6.2 Right to Terminate. During the Term, You may terminate this Agreement at any time as set forth in Section 2 above, however, You shall not receive a refund or reimbursement of any fees paid or due for the agreed upon term. Upon expiration or termination of this Agreement, all applicable rights and access granted to You hereunder will automatically terminate and you and your Personnel will cease any further use of the TavaHatz Services and return, or, if directed by TavaHatz, destroy all Confidential Information (defined below) of TavaHatz. Any Section of this Agreement which by its nature would survive such expiration or termination shall survive.

7. CONFIDENTIALITY

Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). TavaHatz’s Confidential Information includes non-public information regarding features, functionality and performance of the Service and all pages and materials on the TavaHatz website that are accessible only after logging in. Your Confidential Information is limited to non-public data provided by you to TavaHatz in writing to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law. The parties hereby agree that breach of this Section 7 may cause irreparable harm to the Disclosing Party, and that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to seek injunctive relief to prevent such breach (or threatened breach) without any requirement to post a bond.

8. DATA PROTECTION

8.1 Data Privacy. You expressly acknowledge and agree that it is your responsibility to comply with any and all privacy and data protection laws (including but not limited to the EU General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), Colorado Privacy Act (CoPA), and any other privacy laws that may come into effect from time to time, regulations and terms applicable to any personal data provided by you for the purposes of the Service regardless of the country/state in which you are based. The above mentioned includes, but is not limited to, complying with the terms and restrictions related to your use of customer/contact databases and complying with any applicable privacy policies and cookie policies.

8.3 Privacy. TavaHatz may collect and process Personal Data regarding you and/or your personnel and/or other representatives in connection with the Service. Such processing is described in TavaHatz’s Privacy Policy. TavaHatz may share such information with its partners, vendors and service providers, including without limitation in order to provide research, analytics, support, security, fraud prevention, spam prevention, advertising, and/or email marketing, to complete transactions or to ensure compliance with this Agreement. You consent to such collection, use, processing and sharing of Your Information in accordance with the terms of our Privacy Policy and applicable laws.

9. REPRESENTATIONS AND WARRANTIES

9.1 Content Warranties. You represent and warrant that Your Content and all information you provide in connection with the Services, and the receipt, collection, use and provision thereof: (i) shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (ii) is in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions (“Laws”); (iii) has all necessary consents, approvals or other authorizations or permissions for use, and is in compliance with applicable privacy policies and third-party terms and conditions; and (v) does NOT contain any personally identifiable information or persistent identifiers from individuals under the age of 16.

9.2 Further Warranties. You further represent and warrant that (i) you have implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the TavaHatz Services, Your Content and Your Services; (ii) you will not do anything that will make the TavaHatz Services subject to any open source or similar license which creates an obligation to grant any rights in the TavaHatz Services; (iii) you will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the TavaHatz Services; (iv) in the event of any security breach or unauthorized access to any TavaHatz Services, Your Content and/or Your Services, you will immediately investigate such breach and notify TavaHatz in writing, and, unless otherwise notified by TavaHatz, take all corrective action necessary to remedy such breach and/or comply with applicable Law and the requirements of TavaHatz, all at your cost; and (v) you, your use of the TavaHatz Services, Your Content and Your Services will comply with all Laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.

9.3 DISCLAIMERS. TAVAHATZ SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. TAVAHATZ DOES NOT WARRANT THAT: (I) THE TAVAHATZ SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) SHORTENED URLS OR THE TAVAHATZ SERVICES WILL BE ACCURATE, ERROR-FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE TAVAHATZ SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE TAVAHATZ SERVICES WILL MEET YOUR REQUIREMENTS OR ANY OF YOUR OR YOUR USERS’, PERSONNEL’S OR CUSTOMERS’ BUSINESS NEEDS; OR (V) THE TAVAHATZ SERVICES WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. YOUR USE OF THE TAVAHATZ SERVICES IS SOLELY AT YOUR OWN RISK. FURTHER, TAVAHATZ MAKES NO REPRESENTATIONS OR WARRANTIES AND SHALL ASSUME NO LIABILITY AMOUNTS OR INDEMNITY OBLIGATIONS WITH RESPECT TO ENSURING THAT YOUR USE OF THE TAVAHATZ SERVICES COMPLY WITH ANY LAWS OR REGULATIONS OUTSIDE THE UNITED STATES AND YOU SHALL BE SOLELY LIABLE FOR SUCH COMPLIANCE. TAVAHATZ SHALL BEAR NO RESPONSIBILITY FOR THIRD PARTY PRODUCTS OR SERVICES (E.G., OPEN SOURCE SOFTWARE, SOCIAL MEDIA PLATFORMS, THIRD PARTY MATERIALS OR FOR HOST OR APP STORE PROVIDERS).

10. INDEMNIFICATION

Indemnity. You will defend, indemnify and hold harmless TavaHatz, its parents, subsidiaries, affiliates and their employees, officers, directors, representatives, contractors, customers, business partners, successors and assigns (“TavaHatz Indemnitees”) from and against any third party claims and actions, and resulting damages, liabilities and costs (including reasonable attorneys’ fees and expenses) incurred by TavaHatz Indemnitees arising out of or directly or indirectly related to (a) Your Content, Your Services; (b) Your breach of Section 5.3 or any violation of Laws; and/or (c) any allegation of intellectual property, privacy or publicity infringement concerning Your Content, Your Services, or the combination of the TavaHatz Services with any product, service or other material not provided by TavaHatz. TavaHatz shall promptly notify you of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not vitiate your indemnification obligations unless you are materially prejudiced thereby. You will have sole control over the defense of any claim under this Section, except that TavaHatz may approve any counsel used by you, and that TavaHatz may participate in the defense, at its own cost and expense. All settlements of indemnification claims require the prior consent of TavaHatz.

11. LIMITATION OF LIABILITY

11.1 LIABILITY LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE TAVAHATZ SERVICES OR OTHERWISE HEREUNDER FOR ANY CLAIM RELATED TO: (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE TAVAHATZ SERVICES; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY OF YOUR CONTENT AND OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE TAVAHATZ SERVICES; (V) YOUR FAILURE TO PROVIDE TAVAHATZ WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; OR (VII) YOUR FAILURE TO ACCESS THE TAVAHATZ SERVICES DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY YOU.

11.2 WITH THE EXCEPTION OF YOUR OBLIGATIONS UNDER SECTION 10, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING OUT OF OR IN CONNECTION WITH BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY MAY NOT IN ANY CALENDAR YEAR STARTING FROM THE EFFECTIVE DATE OF ANY ORDER FORM OR FROM FIRST USE OF THE SERVICE, WHICHEVER IS EARLIER, EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF FEES RECEIVED BY TAVAHATZ FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

12. GOVERNING LAW

12.1 Governing Law and Exclusive Jurisdiction. This Agreement, and all matters relating to or disputes arising out of this Agreement, shall be interpreted, governed, and enforced according to the laws of the State of Utah and the United States of America.  This Agreement is made and entered into between the parties in the State of Utah, U.S.A., and all parties hereby consent to the exclusive jurisdiction of an appropriate court in the State of Utah to resolve such disputes or to enter and enforce any arbitration award between the parties.  Moreover, the parties have selected the English language to express their agreement and no other language shall be used to interpret, define or govern this Agreement. The non-prevailing party shall pay the prevailing party’s costs, including attorneys’ fees, arising in connection with any breach of this Agreement.

13. MISCELLANEOUS

13.1 Relationship of the Parties. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

13.2 Entire Agreement and Severability. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the parties with respect thereto, including any non-disclosure agreements signed by the parties, and may be modified only by an express written agreement between the parties. Without limiting the foregoing, no additional or conflicting terms set out on any purchase order, invoice or similar document are binding.

13.3 Force Majeure. Except for any Fees due hereunder, neither party shall not be liable for any delay in performing or failure to perform its obligations hereunder where such delay or failure results from any cause beyond its reasonable control, including, without limitation, cyber-attacks, mechanical, electronic or communications failures, acts of God, terrorism, war, natural disasters, failure of any telecommunications or transportation or of any third party provider or supplier (e.g., host or app store providers) or labor disputes.

13.4 Assignment. Except to an affiliate or in the event of a merger, acquisition or other change of control, neither party may assign this Agreement without the prior written permission of the other party, and any attempt to do so is void. This Agreement shall be binding on any permitted successors and assigns.

13.5 Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

13.6 Headings; Interpretation. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.”

13.7 Export. The parties shall comply with all applicable export and import control laws and regulations, and, in particular, shall not export or re-export the TavaHatz Services without all required United States and foreign government licenses.

13.8 US Government Use. The TavaHatz Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Any access to or use of the TavaHatz Services by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. If you use the TavaHatz Services in its official capacity as an employee or representative of a U.S state or local government entity and are legally unable to accept the indemnity, jurisdiction, venue or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law.

13.9 General. The failure of TavaHatz to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of TavaHatz. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

13.10 Publicity. You grant TavaHatz the right to use your name, trademarks and/or logos on its website, customer lists and/or in marketing, advertising or publicity materials to identify you as a customer that uses the TavaHatz Services.