Partner Agreement
Last modified: March 1, 2024
This Partner Agreement (this “Agreement”), effective as of the date of first acceptance (the “Effective Date”), is by and between Homebrewed Tech, LLC d/b/a OZNR (“OZNR”) and the Partner accepting this Agreement (“Partner”). OZNR and Partner may be referred to herein collectively as the “Parties” or individually as a “Party.”
BY ACCESSING AND/OR USING THE OZNR SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS THE OZNR SERVICES. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT OZNR IS NOT ENGAGED IN OR RESPONSIBLE FOR THE SALE, SERVICE, SHIPPING AND/OR TRANSPORTATION OF ALCOHOLIC BEVERAGES UNDER ANY CIRCUMSTANCES.
1. Rights and Activities.
(a) Grant of Rights. Subject to and conditioned on Partner’s and each Authorized User’s compliance with the terms and conditions of this Agreement and OZNR’s website terms of use and privacy policy, as may be modified from time to time, OZNR shall provide the e-commerce, membership management, marketing, promotional and other service offerings selected by Partner in its account (each a “Service” and collectively the “Services”) to Partner and its employees, consultants, contractors, and agents (i) who are authorized by Partner to access and use the Services under the rights granted to Partner pursuant to this Agreement; and (ii) for whom access to the Services has been obtained hereunder (each an “Authorized User”). Access and use of the Services shall at all times be made in accordance with all documentation, user guidance, handbooks, and/or materials relating to such Services (“Materials”).
(b) Right to Use OZNR IP and Partner IP. “OZNR IP” shall mean the Services, the Materials, any trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of OZNR, and any and all other intellectual property provided to Partner or any Authorized User in connection with this Agreement. OZNR hereby grants Partner a limited, worldwide, revocable, non-exclusive, non-transferable, non-sublicensable right during the Term to access, use, copy or otherwise reproduce, and/or publicly display, the OZNR IP during the Term for the sole purposes of the Services as set forth herein. Notwithstanding anything to the contrary herein, the OZNR IP will remain the property of OZNR. “Partner IP” shall mean any trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of Partner, and any and all other intellectual property provided to OZNR in connection with this Agreement. Partner hereby grants OZNR the right to use the Partner IP during the Term in connection ith OZNR’s performance of the Services as set forth herein.
(c) Partner Data. “Partner Data” shall mean Partner’s and each Authorized User’s information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Partner or an Authorized User through the Services. OZNR acknowledges that, as between OZNR and Partner, Partner owns all right, title, and interest, including all intellectual property rights, in and to the Partner Data.
(d) Aggregated Statistics. “Aggregated Statistics” shall mean data and information related to Partner’s and each Authorized User’s use of the Services and/or Materials that is used by OZNR in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and/or Materials. Notwithstanding anything to the contrary in this Agreement, OZNR may monitor Partner’s and each Authorized User’s use of the Services and Materials, and collect and compile Aggregated Statistics. As between OZNR and Partner and each Authorized User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by OZNR. Partner and each Authorized User acknowledges that OZNR may compile Aggregated Statistics based on Partner Data. Partner agrees that OZNR may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Partner, any Authorized User or Partner’s Confidential Information. Partner and each Authorized User hereby grant to OZNR a non-exclusive, royalty-free, perpetual, worldwide license to reproduce, distribute, and otherwise use and display the Partner Data and perform all acts with respect to the Partner Data as may be necessary for OZNR to provide the Services to Partner, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Partner Data, including all Partner Data which is incorporated within the Aggregated Statistics. For the avoidance of doubt, OZNR IP includes Aggregated Statistics but does not include Partner Data.
(e) No Development; Reservation of Rights. The Parties acknowledge and agree that there shall be no development of intellectual property by either Party for the other Party under this Agreement, and that any intellectual property development activities must be the subject of a separate written agreement prior to the commencement of any such development. All uses of a Party’s intellectual property by the other Party will be in the form and format specified or approved by the owner of such intellectual property. Neither Party will use the other Party’s intellectual property or issue a press release or otherwise refer to the other Party in any manner with respect to this Agreement, the Services, or otherwise, without the prior written consent of such other party. All goodwill related to the use of a Party’s intellectual property by the other Party shall inure to the benefit of the owner of such marks. Except as expressly set forth herein, neither Party shall be deemed to grant the other Party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved.
2. Partner Responsibilities.
(a) Use Restrictions. Partner shall not use the Services and Materials for any purposes beyond the scope granted in this Agreement. Partner shall not, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, or assign the Services or Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Materials; (v) use the Services or Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) utilize the Services or Materials to create, develop, enhance, or modify any competing product or service. Partner is responsible and liable for all uses of the Services and Materials resulting from access provided by Partner, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Partner is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Partner will be deemed a breach of this Agreement by Partner. In no event shall OZNR be liable to Partner for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond OZNR’s reasonable control.
(b) Suspension. OZNR may suspend Partner’s and/or any Authorized User’s use and access to any portion or all of the Services if: (i) OZNR reasonably determines that (A) there is a disruption, security risk, threat or attack on any of the OZNR IP or to any other customer or vendor of OZNR; (B) Partner, or any Authorized User, is using the OZNR IP for fraudulent or illegal activities; (C) Partner has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) OZNR’s provision of the Services to Partner or any Authorized User is prohibited by applicable law; (ii) any vendor of OZNR has suspended or terminated OZNR’s access to or use of any third-party services or products required to enable Partner to access the Services; or (iii) in accordance with Section 3(iii) (any such suspension a “Service Suspension”). OZNR will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any consequences that Partner or any Authorized User may incur as a result of a Service Suspension.
3. Fees and Payment.
(a) Fees. Prior to Customer’s first access of the Services and monthly thereafter, Customer must pay OZNR the non-refundable monthly subscription fees agreed upon by the Parties in writing for the Services, without offset or deduction, in US dollars (the “Subscription Fee”). Upon request, Partner may modify its account to a different tier level, provided that any monthly Fee for a higher tier level account shall be payable to OZNR in advance. In addition, Customer shall be responsible for transaction processing fees through Customer’s use of the Services (the “Platform Fee”), and that Customer has the right to determine how the Platform Fee is distributed to Customer’s consumer customers. Customer acknowledges and agrees that the Platform Fee is based upon Customer offering membership programs through the Services, inclusive of payment processing, and that OZNR will receive a transaction fee off each membership charge. If Customer elects not to offer membership programs through the Services (inclusive of payment processing), then Customer will be assessed an additional per member upload fee (the “Member Upload Fee”). Customer understands and acknowledges that all fees, Services bundles, package structures and/or pricing details may change at any time upon advance notice to Customer in accordance with this Agreement (including via Customer’s invoice and/or posting updated pricing within the Services). For any fees, Partner hereby authorizes OZNR, or its designee, to charge Partner’s account for such non-refundable Fee on a recurring basis consistent with this Agreement using the payment information Partner previously provided to OZNR.
(b) Payment Processing. In connection with usage of the Services, Customer may provide credit card information to one of OZNR’s designated third-party service providers, who will store such credit card information separately from the Services in order to facilitate reoccurring payment transactions, and/or utilize certain third-party payment services. OZNR has no responsibility or liability for any credit card information and/or third-party payment services, and Customer shall be solely responsible and liable for any credit card information and related transactions to facilitate payment of orders. Customer understands and agrees that Customer is responsible and liable for all activity in connection with such third-party service providers, whether initiated by Customer or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of the Services in a manner prohibited under this Agreement).
(c) Late Fees. If Partner fails to make any undisputed payment when due, without limiting OZNR’s other rights and remedies: (i) OZNR may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Partner shall reimburse OZNR for all reasonable costs incurred by OZNR in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, OZNR may suspend Partner’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(d) Taxes. All fees and other amounts payable by Partner under this Agreement are exclusive of taxes and similar assessments. Customer shall be responsible for all sales, use, excise and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on OZNR’s income.
(e) Promotional Rates. Customer acknowledges and agrees that if the parties have agreed in writing on a complimentary, free trial, bundled products, and/or promotional pricing period, then after such period shall be payable at OZNR’s then-current Services pricing. If Customer obtains products offered by OZNR’s affiliates, then Customer may receive a promotional rate for the Services; however, if Customer cancels its agreement with such OZNR affiliate, then Customer will forfeit such promotional rate and will be responsible for the full Services fees for the applicable term.
4. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire seven years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations of this Section 5 may cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
5. Performance Standards and Disclaimer.
(a) OZNR shall use commercially reasonable efforts to provide each Service in accordance with the then-current Materials and at all times in a professional and workmanlike manner.
(b) Partner warrants and represents that:
i. Partner has obtained a federal permit from the federal alcohol and tobacco tax and trade bureau to manufacture, bottle and sell its alcoholic beverage products and shall provide a copy of such license to OZNR upon request;
ii. Partner has obtained a state or provincial alcoholic beverage license to manufacturer, bottle, and sell its alcoholic beverages and shall provide a copy of such license to OZNR upon request;
iii. Partner shall file and maintain all reports, licenses and applications as may be required pursuant to Partner’s business as required by applicable federal, state and local laws and regulations in order to manufacture, market and sell alcoholic beverages;
iv. Partner shall keep and maintain complete and accurate records of alcohol production and sales in compliance with federal, state and local laws and regulations; and
v. Partner is in compliance and shall continue to comply with all federal, state and local tax laws and regulations and with all federal, state and local laws and regulations relating to alcohol permitting and licensing, for so long as this Agreement is valid and enforceable.
(c) The Parties shall comply with applicable laws as it pertains to personally identifiable information and personal data, including, without limitation and as may be applicable, the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) (the “CCPA”), the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), and British Columbia’s Personal Information Protection Act (“PIPA”), and the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and applicable laws pertaining to confidentiality and disclosure with regard to all information or records obtained in the course of the direct business relationship between Partner and OZNR. OZNR is a “Service Provider” as defined in Section 1798.140(v) of the CCPA. Partner may disclose personal information (which shall include all categories of information listed in definition of “Personal Information” under the CCPA and PIPEDA) to OZNR solely (i) for a valid business purpose; and (ii) for OZNR to perform its obligations hereunder. OZNR agrees that except as permitted or required by applicable law, it is prohibited from (x) selling personal information; (y) retaining, using or disclosing personal information for any commercial purpose other than the direct business relationship between Partner and OZNR; and (z) retaining, using or disclosing personal information outside of the direct business relationship between Partner and OZNR.
(d) Each Party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with this Agreement; and (d) it will comply with all applicable laws and regulations in its performance of this Agreement.
(e) THE OZNR IP IS PROVIDED “AS IS” AND OZNR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OZNR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. OZNR MAKES NO OTHER WARRANTY OF ANY KIND THAT THE OZNR IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(f) The Services include an electronic platform for the purpose of connecting consumers to retailers who engage in the sale, fulfillment, transportation and/or shipping services for alcoholic beverages. All orders initiated through the Services are accepted, reviewed, and ultimately fulfilled by Partner, and not OZNR. All alcoholic beverage sales, fulfillment, transportation, and shipping services conducted through the Services are solely transacted between the consumer and Partner from Partner’s location to the shipping destination specified by the consumer. OZNR itself does not make available, provide or sell alcoholic beverages or alcoholic beverage fulfillment, transportation, or shipping services and is not a licensed alcoholic beverage transportation carrier or retailer. Due to direct shipping laws and regulations, the Services may prohibit certain product transactions to certain states, provinces or to prohibited "dry" regions within certain states or provinces. The regulations and court decisions affecting the interstate and/or interprovincial sale and shipment of alcoholic beverages are in constant flux and can change at any time. Therefore, OZNR may change the jurisdictions to which it is able to permit product transactions at any time and without notice to Partner. OZNR makes no representation as to any laws, rules or regulations of any jurisdiction regarding the sale, fulfillment, transportation, and/or shipping services for alcoholic beverages to any consumer. It is Partner’s responsibility (and any logistics provider that you utilize) to verify the consumer’s location, identification, and age, and to determine whether it is legal and otherwise safe and appropriate to sell and furnish the consumer with alcoholic beverages. Partner may specify additional terms for any such transaction.
6.Indemnification.
(a) OZNR Indemnification. OZNR shall indemnify, defend, and hold harmless Partner from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Partner resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services and Materials, or any use of the Services or Materials in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Partner promptly notifies OZNR in writing of the claim, cooperates with OZNR, and allows OZNR sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Partner agrees to permit OZNR, at OZNR’s sole discretion, to (A) modify or replace the Services and/or Materials, or component or part thereof, to make it non-infringing, or (B) obtain the right for Partner to continue use of the Services and/or Materials. If OZNR determines that neither alternative is reasonably available, OZNR may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Partner, and refund a pro rata portion of Partner Fees for such Services. This Section 6(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services and/or Materials in combination with data, software, hardware, equipment, or technology not provided by OZNR or authorized by OZNR in writing; (B) modifications to the Services and/or Materials not made by OZNR; or (C) Partner Data.
(b) Partner Indemnification. Partner shall indemnify, hold harmless, and, at OZNR’s option, defend OZNR from and against any Losses resulting from any Third-Party Claim: (i) that the Partner Data, or any use of the Partner Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; or (ii) based on Partner’s or any Authorized User’s (a) negligence or willful misconduct, (b) use of the Services and/or Materials in a manner not authorized by this Agreement, (c) use of the Services and/or Materials in combination with data, software, hardware, equipment or technology not provided by OZNR or authorized by OZNR in writing, or (d) modifications to the Services and/or Materials not made by OZNR; or (e) based on Partner’s failure to maintain appropriate federal, state, provincial, or local alcoholic licenses or Partner’s failure to comply with any federal, state, provincial, or local alcohol sale, transportation, and/or licensing law, regulation or ordinance; provided that Partner may not settle any Third-Party Claim against OZNR unless OZNR consents to such settlement, and further provided that OZNR will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 6 SETS FORTH CUSTOMER’S SOLE REMEDIES AND OZNR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
7. Limitations of Liability. IN NO EVENT WILL OZNR BE LIABLE TO PARTNER UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OZNR’S AGGREGATE LIABILITY TO PARTNER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO OZNR HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and will continue in effect until this Agreement is terminated pursuant to its express provisions (“Term”). The subscription term regarding Customer’s access to the Services is monthly, renewing automatically unless Customer elects not to renew by providing written notice of termination or non-renewal to OZNR at support@oznr.com; however, Customer acknowledges and agrees that all fees and other amounts payable by Customer under this Agreement are non-refundable and non-cancellable.(b) Termination. In addition to any other express termination right set forth in this Agreement:
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Partner may terminate this Agreement prior to any renewal period online via Partner’s account;
(ii) OZNR may terminate this Agreement, effective on written notice to Partner, if Partner: (A) fails to pay any undisputed amount when due hereunder; or (B) breach of any of Partner’s obligations under Section 2 or Section 3;
(iii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides written notice of such breach; or
(iv) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon termination of this Agreement, Partner shall immediately discontinue use of the OZNR IP. No termination will affect Partner’s obligation to pay all Fees that may have become due before such termination, or entitle Partner to any refund. The provisions of this Agreement which by their nature should survive shall survive termination of this Agreement.
9. Miscellaneous. This Agreement, together with any other documents incorporated herein by reference and all related Addenda, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. OZNR may modify this Agreement at any time by posting a revised version at [INSERT], which modifications will become effective as of the date which they were first posted. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose to stop using the Services. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without regards to its conflicts of laws provisions. The prevailing Party in any such action shall be entitled to recover its reasonable attorney’s fees and cost from the non-prevailing Party. Partner may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of OZNR. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.
