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UrbanSitter Small Business Corporate Program Agreement

Last Updated: 09/01/2020

This agreement governs your access to and use of the UrbanSitter, Inc. website and mobile applications (collectively, the “Site”) and any services offered on the Site (the “Hosted Services”) through our corporate benefit program (the “Agreement”).  By executing an Order Form that references this Agreement, you agree to the terms of this Agreement.  This Agreement is effective between you and UrbanSitter, Inc., a Delaware corporation with offices at 601 California Street, Suite 607, San Francisco, California 94108, as of the date you accepted the Order Form (the “Effective Date“).

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

  1. GENERAL PURPOSE.  The parties are mutually interested in entering into a business relationship whereby your Employees would benefit from access to the care services available through our Hosted Services and you wish to offer access to the Hosted Services to your Employees, as an employment benefit (the “Program”).  This Agreement governs the Program.
  2. DEFINITIONS.
    • “Care Provider” means any care provider who is available to be booked on the Hosted Services and meets the requirements, as may be updated from time to time, available here:  https://support.urbansitter.com/hc/en-us/articles/360034076514-What-is-required-to-be-a-sitter-on-UrbanSitter-
    • “Documentation” means any print and digital marketing materials for the Program provided by us and our then current on-line help, guides, Privacy Policy and Terms of Service published by us and made generally available by us for the Hosted Services. Documentation shall include any updated Documentation that we provide.
    • “Effective Date” means the date you execute an Order Form that references this Agreement.
    • “Employee or Employees” means your employees that reside in the United States.
    • “Enrollment Link” means the website link provided by us to you to provide to your Employees that Employees use to register for access to the Hosted Services.  Once an Employee registers with the website link, their account is activated after it is verified using a valid Customer email address for the Employee through a targeted email verification.
    • “Fees” means the fees you are required to pay us (i) for access to and use of the Hosted Services during a Subscription Term, which fee shall be prorated for any partial month of the applicable Subscription Term based on the total number of days in such month that this Agreement is in effect; and (ii) for implementation of the Hosted Services, as such fees are reflected on an Order Form.
    • “Hosted Services” means the generally available web and mobile based application that utilizes social networking and other marketplace information to enable Users to find, hire and pay Care Providers who are UrbanSitter members at any time, including updates thereto from time to time provided under and subject to (i) the Terms of Service found at https://www.urbansitter.com/terms-of-service and (ii) the Privacy Policy found at https://www.urbansitter.com/privacy-policy (collectively, “Terms”, which may be updated from time to time).
    • “Order Form” means the ordering documents for your purchases from UrbanSitter that are executed by you and UrbanSitter from time to time. All Order Forms shall be deemed incorporated herein.
    • “Parties” means both you and us, jointly.
    • “Party” means either you or us, as context requires.
    • “Subscription Term” means the period of time that you pay Fees to us so that Users may use and access the Hosted Service beginning on the Effective Date.  If you notify us of your intent to not renew or this Agreement is terminated in accordance with Section 11.3 of this Agreement, then the Hosted Service will no longer be made available to Users beyond the end of the applicable subscription membership term, unless such Users assume payment responsibility for continuation of their use of Hosted Services at the prevailing consumer rate.
    • “Users” means you and your Employees who are authorized by you to use the Hosted Services and elect to use the Hosted Services by registering through the Enrollment Link.
    • “We”, “us”, “our”, and “UrbanSitter” all refer to UrbanSitter, Inc.
    • “You”, “your”, and “Customer” means the person or entity that is entering into this Agreement with us.
  3. THE PROGRAM.
    1. Hosted Services.  We will make the Hosted Services available to you and your Employees pursuant to this Agreement and the applicable Order Form during each Subscription Term.  You agree that your subscription is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
    2. Subscription.  Unless otherwise specified in the applicable Order Form, access to and use of the Hosted Services is provided based on a subscription price determined by the number of your Employees.  You understand and agree that: (a) the subscription is limited to the number of your Employees specified on an Order Form; (b) that each User constitutes one individual and log-on credentials for each User may not be shared; and (c) the Hosted Services are limited and governed by the Terms of Use, Privacy Policy, and any other agreed upon restrictions described on the applicable Order Form.  We retain the right to assess the number of Employees from time to time in our sole discretion; to the extent the assessed number of Employees exceeds your subscription, to revise your subscription to the appropriate Fee, and invoice or charge you pursuant to Section 7 of this Agreement.
  4. PROGRAM IMPLEMENTATION.
    1. Benefit Eligibility and Enrollment. You determine the eligibility for your Employees for enrollment in the Program.  Employees may enroll in the Program at any point in time during the Term (i.e., there is no enrollment window for this benefit).   We will provide you with Documentation to provide information about the Program to Employees, including enrollment instructions and an Enrollment Link to provide to your Employees.
    2. UrbanSitter Program Responsibilities.  We shall: (i) provide you with the Enrollment Link; and (ii) provide Documentation for distribution by you to your Employees.
    3. Customer Program Responsibilities.  You shall: (i) promote and offer the Program to your Employees in the same manner that you offer other comparable employee benefits; (ii)  distribute the Enrollment Link to Employees in a manner consistent with other employee benefits offerings; (iii) use commercially reasonable efforts to promote and market the Program to your Employees; (iv) within fifteen (15) days following the Effective Date, unless otherwise mutually agreed by the Parties, and continuing thereafter, distribute the customized Enrollment Link to all eligible Employees, including new eligible Employees who join your company throughout the Term; and (vi)  notify us of Employees who become ineligible for the Program as soon as reasonably possible.
  5. OWNERSHIP.
    1. As between the Parties, we shall own and retain all right, title and interest in and to the Hosted Services, Documentation, and our Confidential Information (defined below), including all intellectual property rights. You may not duplicate, copy, or reuse any portion of the Hosted Services, Documentation, our Confidential Information or visual design elements or concepts without prior written permission from us.  No rights are granted to you hereunder other than as expressly set forth herein.  As between the Parties, you shall own all right, title and interest in and to any of your Confidential Information.
    2. We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users, relating to the operation of the Hosted Services. 
  6. CONFIDENTIALITY; DATA PRIVACY AND SECURITY.
    1. Confidential Information. Each Party may have access to information that is confidential to the other Party. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party“) disclosed to the other Party (“Receiving Party“), whether orally or in writing, that is clearly identified as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form  hereunder), the Hosted Services, business and marketing plans, technology and technical information, product designs, trade secrets and business processes. A Party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information. The Parties agree to use all reasonable care to prevent disclosure of the other Party’s Confidential Information to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that UrbanSitter may disclose Customer’s Confidential Information to its employees, consultants, and other third-party providers solely to the extent necessary to provide the Hosted Service under this Agreement, provided that UrbanSitter has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement. This Section 6.1 constitutes the entire understanding of the Parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
    2. Disclosure of Confidential Information.  If Receiving Party receives a request to disclose any Confidential Information of Disclosing Party pursuant to a subpoena, order, civil or criminal investigative demand, agency administrative demand, law, rule, regulation, or a judicial or similar process issued by a court of competent jurisdiction, the Receiving Party’s regulators or any other administrative body (each such request, a “Disclosure Request”), the Receiving Party is permitted to disclose such Confidential Information only to the extent necessary to comply with the Disclosure Request or as otherwise required by law.  If legally permitted, Receiving Party shall provide Disclosing Party with prompt prior notice of such Disclosure Request and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to seek protection or confidential treatment of the Confidential Information relevant to the Disclosure Request. If the Receiving Party receives a Disclosure Request as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the Disclosure Request or is requesting the Disclosure Request, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost and fees incurred in compiling and providing secure access to the Confidential Information relevant to the Disclosure Request.
    3. Injunctive Relief.  If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 6, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
    4. Data Privacy and Security.  All capitalized terms used in this Section 6.4 that are not otherwise defined in this Agreement shall have the definitions set forth in the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations.
      1. Information Provided by or Collected on Behalf of Customer by UrbanSitter.  This Section 6.4.1 applies to the collection, retention, use, disclosure, and sale of Personal Information provided by you or which is collected on behalf of you by us (“the Personal Information”) to provide the Hosted Services pursuant to the Agreement or to perform a Business Purpose.  Customer is a Business and appoints UrbanSitter as a Service Provider to process the Personal Information on behalf of Customer. Our collection, retention, use, disclosure, or sale of Personal Information for our own purposes independent of your use of the Hosted Services specified in the Agreement are outside the scope of this Section 6.4.1.
        1. Restrictions on Processing.  We are prohibited from retaining, using, or disclosing the Personal Information for any purpose other than for the specific purpose of providing the Hosted Services for you or as otherwise permitted by the CCPA.  We shall not further collect, sell, or use the Personal Information except as necessary to perform the Business Purpose. For the avoidance of doubt, we shall not use the Personal Information for the purpose of providing services to another person or entity, except that we may combine Personal Information received from one or more entities to which we provide similar services to the extent necessary to detect data security incidents, or protect against fraudulent or illegal activity.
        2. Use.  We warrant that we will not use the Personal Information we receive from or collect on behalf of you in violation of the restrictions set forth in the CCPA.
        3. Consumer Rights.  We shall provide reasonable assistance to you in facilitating compliance with Consumer rights requests.  Upon your direction, and in any event no later than 30 days after receipt of a request from you, we shall promptly delete the Personal Information as directed by you.  We shall not be required to delete any of the Personal Information to comply with a Consumer’s request directed by you if it is necessary to maintain such information in accordance with Cal. Civ. Code 1798.105(d), in which case we shall promptly inform you of the exceptions relied upon under 1798.105(d) and we shall not use the Personal Information retained for any other purpose than provided for by that exception.
        4. Deidentified Information.  In the event that either Party shares Deidentified Information with the other Party, the receiving Party warrants that it: (i) has implemented technical safeguards that prohibit reidentification of the Consumer to whom the information may pertain; (ii) has implemented business processes that specifically prohibit reidentification of the information; (iii) has implemented business processes to prevent inadvertent release of Deidentified Information; and (iv) will make no attempt to reidentify the information.
        5. Mergers, Sales or Other Asset Transfers. In the event that either Party transfers to a Third Party the Personal Information of a Consumer as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the Third Party assumes control of all or part of such Party to the Agreement, that information shall be used or shared consistently with applicable law. If a Third Party materially alters how it uses or shares the Personal Information of a Consumer in a manner that is materially inconsistent with the promises made at the time of collection, it shall provide prior notice of the new or changed practice to the Consumer in accordance with applicable law.
        6. As Required by Law. Notwithstanding any provision to the contrary of the Agreement, we may cooperate with law enforcement agencies concerning conduct or activity that we reasonably and in good faith believe may violate federal, state, or local law.
      2.  Information Provided by Employees to UrbanSitter.  Employees who enroll in the Hosted Services will be providing us with their Personal Information.  We shall use commercially reasonable efforts to maintain appropriate legal, administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of the Employee Personal Information.  In implementing such commercially reasonable efforts, we will use at least the same level of care (including both physical security and electronic security) to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, Employee Personal Information, as we employ to avoid unauthorized access, storage, disclosure, publication, dissemination or use of Personal Information of our other users and in accordance with our Privacy Policy, but in no event less than a reasonable standard of care. The concept of a “reasonable standard of care” as used herein shall include compliance by UrbanSitter with its Privacy Policy and all privacy laws, including, but not limited to the California Consumer Privacy Protection Act, applicable to the security (facility physical security and electronic access and data security), access, storage, disclosure, publication, dissemination and use of Personal Information in our possession.
  7. BILLING AND PAYMENT.
    1. Initial Subscription Term.  Except as otherwise provided in the applicable Order Form and Section 3.2 of this Agreement, the Fees during the initial Subscription Term shall be: (i) based on the number of Employees as of the Effective Date; and (ii) with respect to the Implementation Fee, if applicable, charged upon execution of such Order Form, and with respect to the subscription fee, charged upon execution of such Order Form. 
    2. Renewal Subscription Term.  Except as otherwise provided in the applicable Order Form and Section 3.2 of this Agreement, Fees for any renewal Subscription Term shall be based on the Employee count as of the start of such renewal Subscription Term.  Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced Subscription Terms will be at our applicable list price in effect at the time of the applicable renewal Subscription Term.
    3. Payment Terms.  You agree to pay UrbanSitter the Fees stated on an Order Form or otherwise specified in this Agreement. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide us with valid and updated credit card information or another form of payment acceptable to us. If you provide credit card information, you represent that you are authorized to use the credit card and you authorize UrbanSitter to charge the credit card for all payments hereunder. By submitting payment information, you authorize UrbanSitter to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by UrbanSitter for purposes of acknowledging or completing any payment. All payments under this Agreement are nonrefundable except as otherwise set forth herein. All payments are payable in United States dollars only and are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by us. If an applicable tax authority requires us to pay any taxes that should have been payable by you, we will advise you in writing, and you will promptly reimburse us for the amounts paid.  If payment is not received by the due date, we reserve the right to, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at one and a half percent (1.5%) or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery (including reasonable attorneys’ fees), (ii) suspend your and your Employees’ access to the Hosted Services until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (iii) terminate the applicable Order Form.  
  8. LIMITED REPRESENTATIONS & WARRANTIES; DISCLAIMER
    1. Authority.  Each Party represents and warrants that: (a) it has the power and authority to enter into this Agreement; (b) this Agreement and each Order Form is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and Conditions of this Agreement; (c) its execution of this Agreement does not violate any other agreement by which it is bound; (d) it is a legal entity in good standing in the jurisdiction of its formation; (e) it will comply with all laws, rules and regulations in connection with this Agreement; and (f) to the knowledge of each Party, its execution, delivery and performance of this Agreement will not violate any law, statute or other governmental regulation.
    2. DISCLAIMER OF WARRANTIES.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  THE HOSTED SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS.
  9. INDEMNIFICATION.  Each Party (an “Indemnifying Party”) will indemnify and hold the other Party and its directors, officers, employees and agents harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Damages”) arising out of or in connection with any third party claim to the extent arising out of or relating to (i) any act or omission by the Indemnifying Party in the performance of its obligations, including, but not limited to, with respect to confidentiality and data privacy and security, under this Agreement that constitutes negligence, fraud, or willful misconduct or (ii) any breach by the Indemnifying Party of any provision of this Agreement.  The indemnified Party(ies) will give the indemnifying Party (i) prompt written notice of any claim, provided that the failure or delay to notify the indemnifying party will not relieve the indemnifying Party from any liability that it may have to the indemnified Party(ies) under this Agreement so long as the failure or delay will not have materially prejudiced the defense of such claim; (ii) reasonable assistance in defending the claim; and (iii) sole authority to defend or settle such claim.  The indemnified Party(ies) will not be required to consent to a judgment against it or enter into a settlement that is prejudicial to it.  If an indemnifying Party elects not to defend any such claim, the indemnified Party(ies) will have the option, but not the duty, to reasonably settle or defend the claim at its cost and the indemnifying Party will indemnify the indemnified Party(ies) for such settlement or defense and any Damages finally awarded against the indemnified Party(ies) attributable to such claim.
  10. LIMITATION OF LIABILITY. YOU AGREE THAT THE PRICING OF OUR PROGRAM REFLECTS THE INTENT OF BOTH YOU AND US TO LIMIT OUR LIABILITY AS PROVIDED HEREIN.  THEREFORE, YOU AGREE THAT, EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SERVICES (UNDER ANY THEORY INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, CONTRACT OR STRICT LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR FOR PAYMENT OF FEES OWED, IN NO CASE WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO URBANSITTER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY.  THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER.
  11. TERM AND TERMINATION.
    1. Term of Agreement.  Unless otherwise provided in an Order Form, this Agreement shall commence on the Effective Date listed above and shall continue until expiration or termination of this Agreement or Order Forms executed hereunder.
    2. Subscription Term.  Except as specified otherwise in an Order Form, a standard Subscription Term is for a one (1) month Subscription Term commencing on the Effective Date. Your subscription to the Hosted Services will automatically renew for additional one (1) month periods unless either party notifies the other of its intent not to renew in writing at least thirty (30) days prior to the expiration of the then-current Subscription Term. 
    3. Termination Rights.  Either Party may terminate this Agreement as follows: (a) with or without cause at the end of the Term provided that the terminating Party provides the other with thirty (30) days prior written notice; (b) for cause if the other Party breaches this Agreement or the terms and condition of the Program as set forth herein and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (c) immediately if the other Party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar authority; or (d) in the case of UrbanSitter, at any time in UrbanSitter’s discretion upon notice of nonpayment to Customer if Customer does not pay the Fees when due.
    4. Effect of Termination.  Upon termination or expiration of this Agreement: (i) the Subscription Term for the Hosted Services shall immediately end; (ii) you will no longer have the right to use the Hosted Services, and any licenses or access granted to you relating to same shall automatically cease to exist as of the date of termination; (iii) if any Fees is outstanding prior to termination, other than for termination by you for our uncured breach, you must pay those Fees immediately; (iv) we shall notify Users, via their registered email addresses, that the Program has terminated, and their account shall be cancelled; and (v) we will provide a link to our FAQ or equivalent to Users, which contains information regarding subscription options if a User wishes to continue their subscription at our then-current subscription rate.  
    5. Survival.  The following provisions shall survive any termination of this Agreement: Sections 2, 5, 6, 7.4, 8-10, 11.4-11.5, and 12.2-12.9.
  12. GENERAL PROVISIONS.
    1. Mutual Trademark License. Subject to the terms and conditions of this Agreement, each Party (“Licensor”) hereby grants to the other Party (“Licensee”) a nonexclusive license to use and display those names, trademarks and logos owned and provided by such Licensor hereunder (“Marks”) solely as necessary to perform Licensee’s obligations under this Agreement, or as otherwise expressly authorized by Licensor.  In its use of the Licensor’s Marks, the Licensee shall comply with any trademark usage guidelines that Licensor may communicate with Licensee from time to time and each use of Licensor’s Marks by Licensee shall be accompanied by the appropriate trademark symbol (either “TM” or “®”) and a legend specifying that such Marks are trademarks of Licensor and shall be in accordance with Licensor’s then-current trademark usage policies as communicated to Licensee from time to time; it being understood that the inadvertent failure to comply with this sentence shall not be a material breach of this Agreement by the Licensee and the Licensee shall promptly take all necessary steps to cure any such failure on a prospective basis promptly following receipt of written notice from Licensor. Licensee shall provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor.  If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, is deficient in quality, Licensee shall remedy such deficiency promptly following receipt of written notice of such deficiency from Licensor.  All goodwill resulting from Licensee’s use of Licensor’s Marks shall inure solely to Licensor.  Licensee shall not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).  Licensee shall not use Licensor’s Marks for any promotional or other purpose, except with respect to the performance of Licensee’s obligations under this Agreement, without the express written consent of the Licensor.
    2. Choice of Law; Venue.  Any action related to this Agreement will be governed exclusively by the internal laws of the state of California, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in San Francisco County, California.  The Parties hereby irrevocably consent to the jurisdiction of such courts. 
    3. Entire Agreement. This Agreement and the Terms, together with any applicable Order Forms, represent the Parties’ entire understanding relating to the Program and the use of the Hosted Services and supersedes any prior or contemporaneous, conflicting or additional, communications. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of the Parties hereto.  In the event any Order Form contains terms that are different from or in addition to the terms of this Agreement, the different or additional terms of the Order Form shall control.
    4. Relationship of Parties.  No joint venture, partnership, employment, or agency relationship exists between UrbanSitter and Customer as a result of this Agreement or use of the Hosted Services.
    5. Assignment.  Neither Party shall assign, sublicense or otherwise transfer its rights and/or obligations under this Agreement, or any portion hereof, to any person or entity without notifying the other Party in writing prior thereto, except that either Party may assign this Agreement or any of its rights or obligations arising hereunder to the surviving entity in a merger, acquisition or consolidation in which it participates, or to a purchaser of substantially all of its assets.
    6. Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond such Party’s reasonable control, including acts of God, by acts of any governmental authority, declared war in the United States, hostilities (whether war is declared or not), flood, fire, earthquakes, riot or civil unrest, epidemics or other public health events, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees), national or regional emergency, internet or other Hosted Service disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks.  Either party that wishes to delay or is unable to perform its obligations pursuant to this section must provide written notice to the other party identifying the event or circumstance that is the basis for such delay or failure to perform as soon as practicable after learning about such event or circumstance.
    7. Notice.  Any notice or communication required or permitted to be given in this Agreement must be in writing, signed or authorized by the Party giving notice, and may be: (a) delivered by hand or deposited with an overnight courier; (b) sent by confirmed email or confirmed facsimile (except that neither email nor facsimile shall be deemed sufficient for notices of breach or termination); or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the addresses indicated in the Order Form.
    8. No Waiver, Severability.  If we do not enforce any right or remedy available under this Agreement, that failure is not a waiver.  If any part of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in force.
    9. Nonexclusive Agreement.  This Agreement is nonexclusive and will not be construed to prevent either Party from entering into any similar agreement or arrangement with any third party.