1. Grant of Rights; Exclusions; Implementation
(a) Grant of Rights. Subject to the terms and conditions of this Agreement, the Parties hereby grant to each other the rights set forth herein and in any Appendix hereto, including the rights to the services or modules described herein and therein (collectively, the “Services”), provided that, with respect to Customer’s Online Presence, such Services may only be used during the Term and using Software hosted on Stand And Stretch computer servers.
(b) Exclusions from Grant of Rights; Limitations. Except as expressly set forth herein, Customer shall not permit any third party to use or transfer, reproduce, lease, lend, sub-license, use for timesharing or service bureau purposes, re-sell or otherwise distribute all or any portion of any Service (including by sharing Customer’s access password) to any third-party or to any Web site other than Customer’s Online Presence, including via the Internet or any successor public or private data network. If any provision of this Agreement and/or the provision of all or any portion of any Service to Customer by Stand And Stretch causes Stand And Stretch to be in actual violation of any law of any jurisdiction or any third-party agreement, then Stand And Stretch shall promptly notify Customer in writing of such violation and Stand And Stretch may at any time modify its grant of rights under this Agreement and any Appendix hereto to the extent necessary to remedy such actual violation.
(c) Provision of Services. Subject to the terms and conditions of this Agreement, Stand And Stretch shall provide: (i) the Services from and after the Effective Date, provided, however, that the Services shall not commence until Customer has satisfied the Customer Technical Requirements; and (ii) the Education Services Training in accordance with agreement.
2. Proprietary Rights; Restrictions on Use; Third-Party Software
(a) Customer Disclaimer. Customer acknowledges that, as between Customer and Stand And Stretch, Stand And Stretch is the exclusive provider of the Stand And Stretch Services and the exclusive owner of all right, title and interest in and to the Services, including without limitation, Stand And Stretch Technology and any derivatives, improvements, enhancements or extensions of Stand And Stretch Technology conceived, reduced to practice or otherwise developed by either Party, all of which are valuable assets of Stand And Stretch. Except as specifically provided herein and in any Appendix hereto, this Agreement shall not transfer to Customer any right, title or interest in the Services or Stand And Stretch Technology or in any copyright, patent or trademark or other intellectual property right, or federal or state right pertaining thereto. Customer shall take, at Stand And Stretch’s expense, such action (including, without limitation, execution of affidavits and other documents) as Stand And Stretch may reasonably request to effect, perfect or confirm Stand And Stretch’s ownership interests and other rights as set forth in this Section.
(b) Restrictions on Use. Customer shall not: (i) use any Service, Stand And Stretch Technology, Software or Third-Party Software except pursuant to the limited rights expressly granted in this Agreement; (ii) use any Service in any manner that is inconsistent with written user manuals, if any, supplied to Customer by Stand And Stretch or inconsistent with Stand And Stretch’s standard security procedures, if any, accessible through Customer’s user interface; (iii) attempt to reverse engineer, hack into, compromise, modify or otherwise change any aspect of a Service or any Stand And Stretch Technology, Software or Third-Party Software, or attempt to access data of any other customer of Stand And Stretch; or (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to Customer by Stand And Stretch.
(c) Third Party Software. The Services may include the license to Customer of software developed and copyrighted by third party software developers (including all related documentation, “Third Party Software”) that is not Stand And Stretch Technology. Customer’s use of all Third Party Software, all rights and remedies for any errors or defects in any Third Party Software, and Customer’s right to recover any Losses suffered by Customer as a result thereof, are subject to the additional terms and conditions set forth in this Agreement and in each Appendix hereto.
3. Payment of Fees; Project Delay Fees; Credit Application; Payment Terms and Late Fees
(a) Fees. Customer shall pay in U.S. dollars to Stand And Stretch fees (the “Fees”) as set forth herein and in any Appendix hereto at the rates specified in the Fee Schedule. Customer shall pay Stand And Stretch the Minimum Monthly Technology Services Fee, if specified in the Fee Schedule, with respect to each month in which the aggregate amount of Technology Services Fees otherwise due and payable to Stand And Stretch by Customer is less than the Minimum Monthly Technology Services Fee. Service Fees shall be payable on a tiered basis such that an additional Impression delivered beyond the threshold of a range is charged at the CPM of the next range, as indicated on the Fee Schedule.
(b) Where a project has final approval, Stand And Stretch will indicate timeframes for both parties. If a client delays the project for more than 30 days, (by missing deadlines for the supply of information, content or images) Stand And Stretch reserves the right to charge a project-delay fee of 10% of the project total to recover costs associated with ongoing management of the project.
(c) Payment Terms. Stand And Stretch shall invoice Customer for all Fees and any other amounts incurred in a calendar month at the end of such month, and such Fees and other amounts shall be due within thirty (30) days of Customer’s receipt of the invoice (each such date, a “Payment Date”). Customer may pay the invoiced amount by check or wire transfer of immediately available funds to the account specified by Stand And Stretch. From time to time, upon request by Stand And Stretch, Customer shall submit a completed credit application for review by Stand And Stretch. If no credit application is submitted or the request for credit is denied by Stand And Stretch, Stand And Stretch, in its sole discretion, may accelerate outstanding amounts or require that Customer pre-pay a portion of the Fees contemplated to be paid by Customer here under.
(d) Late Fees; Claims for Adjustments. If Customer does not pay an invoiced amount on or before the applicable Due Date, Stand And Stretch may elect to charge Customer interest on such amount at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by applicable law, if less) which, if Stand And Stretch so elects, shall be immediately due and payable together with such invoiced amount. In addition, Customer will pay all reasonable expenses (including attorneys’ fees) incurred by Stand And Stretch in collecting overdue amounts. Any claims for adjustments in billing must be presented in writing to Stand And Stretch within ninety (90) days from the date of invoice with documentation sufficient in detail to support such claim. If no claim is made within such period, the invoiced amount shall be deemed to be final and conclusive.
(e) Taxes and Costs; Denomination of Payments. All Fees charged by Stand And Stretch hereunder shall be exclusive of all present and future taxes and similar levies, all of which shall be the sole responsibility of Customer, except for taxes based on Stand And Stretch’s net income. Any taxes imposed on Stand And Stretch (other than taxes based on its net income) in connection with any or all of the Services or this Agreement will appear as a separate item on Stand And Stretch’s invoices. Except as set forth herein, each Party shall be responsible for its own costs incurred with this Agreement. All amounts payable under this Agreement are denominated in United States dollars and each Party will pay all amounts payable under this Agreement in United States dollars.
4. Termination; Non-Solicitation; Survival
(a) Mutual Rights. In addition to any other rights or remedies it may have, each Party shall have the right to terminate this Agreement immediately on written notice to the other Party in the event that the other Party (i) materially breaches this Agreement and such breach remains uncured for thirty (30) days’ following receipt of written notice from the non-breaching Party describing the breach in reasonable detail and requiring its cure; (ii) ceases to do business in the normal course; or (iii) makes a material assignment for the benefit of creditors. (b) By Stand And Stretch. Stand And Stretch shall have the right to terminate this Agreement upon notice to Customer in the event that Customer has not paid the entire amount of an invoiced amount within sixty (60) days of the Due Date.
(c) Effect of Termination; Survival of Provisions. Upon the expiration or termination of this Agreement all outstanding amounts due shall become due and payable immediately, Customer shall, at Stand And Stretch’s option, return or destroy (and so certify to Stand And Stretch) all Stand And Stretch Technology and Third-Party Software and any related documentation, and all rights and obligations of the Parties under this Agreement shall be extinguished, provided, however that: (i) all accrued payment obligations hereunder shall survive such termination or expiration; and (ii) this paragraph and Sections 2, 3, 4, 5(c), 6, 7, 8(b), 9, 11, and 13 respectively, shall survive indefinitely or to the extent otherwise expressly stated therein, and each of the Parties shall perform and observe its respective obligations and discharge its respective liabilities under all such surviving provisions of this Agreement. (d) Non-Solicitation of Personnel; Non-Disparagement. Customer shall not, during the Term of this Agreement or for the period of one (1) year thereafter: (i) directly or indirectly solicit, seek, procure or enter into any arrangement for the provision of the services of any employee or agent of Stand And Stretch who is or was engaged in the provision of the Services to Customer without the prior written consent of Stand And Stretch, provided that the foregoing restriction shall not: (x) apply to employees who are not employed by Stand And Stretch for at least six (6) months prior to the time Customer solicits them; or (y) restrict Customer from generally advertising available positions; or (ii) in any form or manner, disparage Stand And Stretch or any of its services or products.
5. Representations and Warranties
(a) Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to carry out the terms and conditions contained herein; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) to the extent also applicable to the subject matter of this Agreement, it will conduct its business in accordance with all laws applicable to its business. In addition to the foregoing, each Party also makes the applicable representations and warranties, if any, set forth elsewhere herein and in each Appendix hereto.
(b) Additional Stand And Stretch Representations and Warranties. In addition, Stand And Stretch represents and warrants that: (i) as of the Effective Date, to the knowledge of Stand And Stretch, neither a Service nor any Stand And Stretch Technology infringes upon any third party’s U.S. intellectual property rights; and (ii) Stand And Stretch will provide the Services with professional diligence and skill and in a manner reasonably consistent with industry standards.
(c) Additional Customer Representations and Warranties. In addition, Customer represents and warrants that: (i) it holds the necessary rights, licenses, consents, waivers and permissions to permit the use of all Advertisements by Stand And Stretch for the purpose of this Agreement; (ii) it will not use any Service in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws or any rights of any third parties, including without limitation, any Privacy Laws and any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity; (iii) it will not include or provide via the Online Presence any material that promotes hate, violence or unlawful discrimination, or that is libelous, pornographic, obscene, or defamatory under any applicable law or in any jurisdiction in which a user resides and (iv) it undertakes, or will cause to be undertaken, all necessary HTML programming with respect to Customer’s Online Presence necessary to enable Stand And Stretch to perform its obligations under this Agreement, including, without limitation, adherence to Stand And Stretch’s page tagging methodology made available to Customer in technical Training sessions or written specifications of which shall be delivered to Customer upon request (the “Customer Technical Requirements”). Customer shall not use the Services or 24/7 Real Technology to transmit, distribute or store material that is inappropriate (including online gambling), as reasonably determined by Stand And Stretch, or material that is illegal, defamatory, libelous, indecent, obscene, pornographic, enables online gambling or inconsistent with the generally accepted practices of the Internet community. Customer shall ensure that its and its users’ use of the Services and all content transmitted, distributed or stored by the Services do not violate any applicable domestic or foreign laws or regulations including but not limited to laws relating to content distribution, encryption or export or any rights of any third party. Customer shall not use the Services to transmit, distribute or store material that contains a virus, worm, Trojan horse, or other component harmful to the Services, any other network or equipment, or other users.
Further, Customer shall not use the Services to transmit or distribute material containing fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive, or misleading statements, claims, or representations. Customer grants to Stand And Stretch a non-exclusive, worldwide, fully paid license of all rights under applicable law to all material provided by Customer to Stand And Stretch to allow Stand And Stretch to perform its obligations under this Agreement, and Customer shall use reasonable efforts to make Stand And Stretch a third-party beneficiary of any limitations or exclusions of liability in favor of Customer agreed to by any of its advertisers.
(a) Indemnification. Each Party shall indemnify and hold harmless the other Party and each of its advisors, agents, employees, directors, and officers from and against all costs, claims, expenses and liabilities arising in connection with any and all actual losses, damages, liability, costs, expenses, judgments and settlement amounts, including reasonable attorneys’ fees (collectively, “Losses”), incurred by all or any of them in connection with any third-party claim arising out of or in connection with the breach of any representation, warranty or agreement made by the indemnifying Party hereunder.
The indemnification obligations set forth in this Section 6 are contingent upon the following conditions: (i) Stand And Stretch or the Customer, as the case may be (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) in writing of the third party claim or action; provided, that the Indemnified Party’s failure to give such notice or delay in giving such notice shall not affect its right to indemnification under this Section 6 except to the extent that the Indemnifying Party has been prejudiced by such failure or delay; (ii) neither Party has any obligation to indemnify the other Party in connection with any settlement made without the Indemnifying Party’s written consent; (iii) the Indemnified Party has the right to participate at its own expense in the claim or suit and in selecting counsel therefor; provided, that the Indemnifying Party shall control the defense; (iv) the Indemnified Party shall cooperate with the Indemnifying Party as reasonably requested, at the Indemnifying Party’s sole cost and expense; (v) the Indemnifying Party shall not settle any claim or suit without the Indemnified Party’s prior written consent unless (x) such settlement is limited to the payment of cash by the Indemnifying Party and (y) contains a full release of the Indemnified Party (b) Limitation on Indemnification. Notwithstanding any other provision of this Agreement, Stand And Stretch will not indemnify Customer for any Losses relating to the infringement by any Service or Stand And Stretch Technology of any intellectual property rights of a third party to the extent: (i) such Losses would have been avoided but for modifications of a Service or Stand And Stretch Technology, or any portion thereof, made by Customer; (ii) such Losses would have been avoided but for the combination or use of a Service or Stand And Stretch Technology, or any portion thereof, with other products, processes or materials (including, without limitation, the Customer’s own technology); (iii) after Customer is enjoined from using a Service or Stand And Stretch Technology, Customer continues allegedly infringing activities; (iv) Customer continues allegedly infringing activities after being informed of modifications that would have avoided the alleged infringement; or (v) such Losses relate to any Third Party Software provided under this Agreement.
7. Customer Data
(a) Customer Data. Customer has the sole and exclusive right to use all data derived by its use of the Services, for any purpose related to Customer’s business and Customer shall retain complete ownership of all confidential information and statistics relating to its Online Presence, such as raw data and log files generated by a Service (collectively, “Customer Data”). Upon Customer’s written request for a hard copy of any Customer Data, Stand And Stretch will provide data processing services to Customer at Stand And Stretch’s customary rates for such services plus any reasonable associated expenses, provided that all outstanding Fees are paid in full by Customer.
Stand And Stretch shall make Customer Data available to Customer for a period of thirteen (13) months from date of creation of such Customer Data. Stand And Stretch shall have no obligation to maintain Customer Data more than 13 months after its creation.
(b) Stand And Stretch Use of Customer Data. Notwithstanding the foregoing, in connection with the provision of the Services, Stand And Stretch use aggregated Customer Data to (i) compile aggregate statistics, metrics and general trend data about the Services for marketing and promotional purposes; and (ii) the extent necessary to integrate operation and management of the Services within the operation and management of services provided for all of customers of Stand And Stretch. Any data collected or used in the foregoing manner by Stand And Stretch shall not constitute “Customer Data.”
8. Privacy Matters
(b) Privacy Laws. Customer represents and warrants that: (a) Customer has knowledge of, and is familiar with, all international, federal, state and local laws, rules and regulations, and industry standards relating to privacy applicable to its business (collectively, “Privacy Laws”), including, without limitation, the Online Privacy Protection Act of 2003 (AB 68), codified as California Business and Professions Code Section 22575 et seq.; (b) with respect to all Web sites in Customer’s Online Presence, Customer will comply with any and all Privacy Laws, including, without limitation, Privacy Laws regarding: (i) providing notice to the public of Customer’s use, if any, of Behavioral Segment Data; and (ii) storing, maintaining, using and distributing Customer Data; (c) Customer shall not use Behavioral Segment Data in a way that infringes upon any third party’s intellectual property rights; (d) Stand And Stretch will have no responsibility for Customer’s compliance with Privacy Laws; (e) Customer is and shall remain a member of TRUSTe or another recognized organization dedicated to the protection of the privacy rights of individuals; and (f) Customer shall take all necessary steps to protect the privacy rights of individuals who receive advertisements served by or on behalf of Customer.
(a) Confidentiality. Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information, except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without such other Party’s prior written consent. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other Party.
(b) Definition. The term “Confidential Information” shall mean any information disclosed by one Party to the other Party in connection with this Agreement that is disclosed in writing, orally or by inspection and is identified as “Confidential” or that a Party should reasonably believe is treated as confidential by such other Party, and shall include the terms of this Agreement and any other information disclosed by Stand And Stretch that relates to a Service or Stand And Stretch Technology (including Customer’s password) that is not publicly known. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (i) was developed independently by the receiving Party without any use of the Confidential Information of the other Party or by employees of the receiving Party who have no knowledge of such Confidential Information; (ii) becomes known to the receiving Party, without restriction, from a third party without breach of this Agreement or any other obligation of confidentiality; (iii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the receiving Party; (iv) was rightfully known to the receiving Party as demonstrated by prior written records at the time of disclosure; or (v) is disclosed by agreement of the Parties or pursuant to the order or requirement of a court, administrative agency, or other governmental or regulatory body; provided, however, that, the receiving Party shall provide prompt notice to the other Party of such order or requirement and, if so requested by the other Party, shall use commercially reasonable efforts to obtain a protective order or otherwise prevent or limit public disclosure of such Confidential Information.
(c) Injunctive Relief. Each Party acknowledges that its breach of this Section 9 may cause irreparable harm to the non-breaching Party, the extent of which would be difficult to ascertain. Accordingly, each Party agrees that, in addition to any other remedies to which the non-breaching Party may be legally entitled, such Party shall have the right to obtain immediate injunctive relief in the event of a breach of this Section 9 by the breaching Party or any of its officers, directors, employees, consultants or other agents.
The Parties shall cooperate to publish a joint press announcement within 30 days of the Effective Date, which may include the name and logo of each Party. Each Party shall seek the other Party’s prior approval for all other written material published by such Party that uses the other Party’s name or logo, provided, however that Stand And Stretch shall not be required to secure Customer’s permission to use Customer’s name and logo in any press release or marketing material that merely states that Customer is a customer of Stand And Stretch, either on an individual basis or as part of a list of some or all of Stand And Stretch’s other customers, and provided, further, however that, solely in connection with the foregoing proviso, Stand And Stretch may display Customer’s name and logo on Stand And Stretch web site(s).
11. Limitation on Liability; Disclaimer
(A) EXCEPT PURSUANT TO ANY INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH HEREIN, IN NO EVENTWILL EITHER PARTY OR PROVIDERS OF THIRD-PARTY SOFTWARE BE LIABLE TO THE OTHER PARTY FOR ANYCONSEQUENTIAL (INCLUDING LOSS OF PROFITS), INCIDENTAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY KIND OR NATURE (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME, PROFITS, REVENUE, SAVINGS OR ANTICIPATED SAVINGS OR WASTED EXPENDITURE), UNDER ANY THEORY OF LAW OR EQUITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. EXCEPT PURSUANT TO ANY INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH HEREIN, AND EXCEPT FOR ANY FEES DUE AND PAYABLE UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE OR CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO STAND AND STRETCH FOR THE 12 MONTHS PRECEDING THE DATE OF WRITTEN NOTICE FROM THE AGGRIEVED PARTY TO THE OTHER PARTY ALLEGING SUCH LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, (I) EACH PARTY WILL MITIGATE DAMAGES THAT WOULD OTHERWISE BE RECOVERABLE FROM THE OTHER PARTY PURSUANT TO THIS AGREEMENT BY TAKING ALL REASONABLE ACTIONS TO REDUCE THE AMOUNT OF SUCH DAMAGES, AND (II) OTHER THAN FOR FEES, NO CLAIM THAT ARISES OUT OF AN EVENT THAT OCCURRED MORE THAN TWO YEARS PRIOR TO THE FILING OF SUCH CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
(B) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN HEREIN, NEITHER STAND AND STRETCH NOR ANY PROVIDER OF THIRD-PARTY SOFTWARE MAKES ANY WARRANTIES OF ANY KIND WITH RESPECT TO ANY SERVICE, STAND AND STRETCH TECHNOLOGY OR THIRD-PARTY SOFTWARE, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, WARRANTY BY USAGE OF TRADE OR COURSE OF DEALING OR WARRANTY THAT ANY SERVICE, STAND AND STRETCH TECHNOLOGY OR THIRD-PARTY SOFTWARE: (I) IS OR WILL BE FIT FOR A PARTICULAR PURPOSE; (II) WILL CONTINUE TO OPERATE OR BE OFFERED IN CURRENT FORM, (III) WILL BE ACCESSIBLE OR OPERATIONAL WITHOUT INTERRUPTION, (IV) WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER, OR (V) WILL BE FREE FROM ERRORS, DEFECTS, OR DESIGN FLAWS.
12. Force Majeure
Notwithstanding anything to the contrary in this Agreement, including its Appendices (other than for delay in the payment of money due and payable hereunder), neither Party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from: acts of God, natural disasters, acts of war, insurrection or terrorism, strikes or lockouts, unauthorized network or computer intrusion, Internet- or computer-related viruses, hacker attacks or other agents introduced by a third party, or failure of the Internet. In addition, Stand And Stretch shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from: (a) any technical requirement for which Customer is responsible, (b) any intentional acts or omissions of Customer, or (c) any failure of any third-party service necessary for Stand And Stretch to provide Services hereunder.
13. Governing Law; Interpretation; Notices
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. THE PARTIES HEREBY CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF GEORGIA AND, IN THE EVENT THAT CUSTOMER IS NOT A RESIDENT OF GEORGIA , CUSTOMER HEREBY CONSENTS TO PERSONAL JURISDICTION IN GEORGIA. In the event that any provision of this Agreement shall be held to be unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and the other provisions shall be unaffected. Waiver by either Party of any term or condition of this Agreement shall not be deemed to be a waiver thereafter of such term or condition or a waiver of any other term or condition or of any later breach of this Agreement. This Agreement and the rights hereunder shall not be transferable or assignable without prior written consent of both Parties. Nothing in this Agreement creates or shall be deemed to have created a partnership, joint venture or an employment contract between Stand And Stretch and Customer or any third-party beneficiary relationship with any third party. Stand And Stretch shall be an agent of Customer for all purposes related to the performance of this Agreement. Any written notice or other written communication to a Party under this Agreement shall be either delivered by hand, sent by fax, or sent by express carrier for next business day delivery or by U.S. registered or certified mail, freight or postage prepaid, and shall be deemed given when delivered by hand or sent by fax, two (2) business days after deposit with an express carrier, or five (5) business days after mailing. Notices shall be sent to a Party at its address set forth on the cover page of this Agreement or such other address or fax number as such Party may specify in writing.